TK Mmxmll Hmrraitj §ib»g BOUGHT WITH THE INCOME FROM THE ,! . ' d-l^ SAGE ENDOWMENT FUND THE GIFT OF Sicnrg m. Sagis 1891 ^^^'f^-^^ g.A/z.......: 3081 Cornell University Library JK251 .M12 Constitutional law in the United States, Clin 3 1924 030 455 459 The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924030455459 AMERICAN CITIZEN SERIES. EDITED BY ALBERT BUSHNELL HART, LL.D. CONSTITUTIONAL LAW IN THE UNITED STATES. EMLIN McCLAIN. Constitutional Law in the United States BY EMLIN McCLAIN, LL.D. Jlustice o£ tfjr^ujteme ffiourt of ioina ; SOMETIME LECTURER ON CONSTITUTIONAL LAW AT THE STATE UNIVERSITY OF IOWA * AUTHOR OF "A TREATISE ON THE CRIMINAL LAW." COMPILER OF "A SELECTION OF CASES ON CONSTITUTIONAL LAW." LONGMANS, GREEN, AND CO., 91 AND 93 FIFTH AVENUE, NEW YORK LONDON AND BOMBAY. 1905. 7> Copyright, 190^, By Longmans, Green, and Co. kA%'\X\\ THE UNIVERSITY PRESS, CAMBRIDGE, U. S. A. TO ELLEN GRIFFITHS McCLAIN, THE INDULGENT SOVEREIGN WHO FINDS SOMETHING TO COMMEND IN A BOOK WHICH HAS TEMPORARILY DIVIDED WITH HER THE ALLEGIANCE OF HER WILLING SUBJECT. Preface. In the preparation of a book intended to give to non- professional students an intelligent conception of the Constitutional Law of the United States, both state and federal, it is essential that the historical development of those institutions and ideas of government which have become characteristic features of our system be noticed, that the practical organization of the government as ■ provided for be explained, and that the interpretation which has been put upon the provisions of constitu- tional instruments in the solution of difficult and impor- tant questions which have arisen shall be stated ; and it is especially important that the proper relationship between these various divisions of the subject shall be maintained. I have endeavored, therefore, to make such references to English institutions and the institutions prevailing in the Colonies prior to independence, and to call attention to such of the important reforms in government, for which the English people and the Colonists had struggled, as may be necessary to explain the nature of the state and federal governments provided for in our written constitutions; for it ought to be borne in mind that constitutional law with us involves the correct interpre- tation of formal instruments of government, framed to meet supposed difficulties and to avert dangers suggested viii Preface. by experience. The language and purport of these in- struments are never to be lost sight of in attempting either to rightly comprehend the system of government pro- vided for or to determine what is within the scope of constitutional law, and therefore fundamental, as distin- guished from that which is the result of mere practice or statutory provision, and therefore in its nature transitory and mutable. It is true that constitutions may be amended, and yet, whether we look at the constitution of any particular state or at that of the federal govern- ment, we discover that thus far in our national history there has been little tendency toward any radical change in the form of government first established. Our con- stitutional system may therefore be regarded as sub- stantially permanent, the result of national development before it was molded into final form, and of constitu- tional interpretation after such final form was given to it by the adoption of the constitutions of the thirteen original states and the federal constitution. This book is not, on the one hand, a theoretical exposition of the general principles of government, nor, on the other, a mere description of the workings of the state and federal governments and their various depart- ments. But, as its title imports, so far as the accom- plishment corresponds to the purpose, it is an exposition of the principles of an established system ; and it is in- tended to afford to the reader an explanation of the important events of the history of our government, and the means of intelligently comprehending the problems constantly arising, the solution of which will make our constitutional history of the future. In short, if the book serves its purpose, it will enable the person who intelli- Preface. ix gently uses it to reach a rational and correct conception of the nature and meaning of the constitutions of the United States and of his state, and to understand the essential features of the governments provided for by such constitutions. In attempting to depict accurately our entire consti- tutional system in due proportions it has been neces- sary to give a larger share of attention than is usually given in works on constitutional law to the nature and functions of the state governments, and to the division of powers between them and the federal government. The state governments are still the repositories of broad and very important powers, and notwithstanding the in- creased exercise of power by the federal government, there is manifested in our recent constitutional history a persistent attachment to the theory of local self-govern- ment which must not be lost sight of in estimating the present trend in the development of our institutions. EMLIN McCLAIN. Iowa City, December, 1904. Contents. Page PREFACE vii SUGGESTIONS FOR STUDENTS, TEACHERS, AND READERS xxiii SMALL REFERENCE LIBRARY xxvii SELECT BIBLIOGRAPHY OF CONSTITUTIONAL LAW xxix Part I. SYSTEM OF GOVERNMENT. Chapter I. Constitutional Government. 1. References -3 2. Constitutional Law as Related to Constitutional His- tory .... 4 3. Features of Our System o£ Government of British Origin 6 4. Popular Sovereignty ; Initiative and Referendum . . 8 5. Written and Unwritten Constitutions n 6. Government under a Written Constitution; Ultimate Sovereignty . . 16 7. Unconstitutionality of Legislative or Executive Acts . 18 II.' Adoption and Amendment of Constitutions. 8. References 26 g. Colonial Charters ; Transition to State Governments . 26 10. Authority on which State Constitutions Rest .... 27 11. Independence of the States 29 12. Union of the States under the Articles of Confedera- tion 30 13. Adoption of the Federal Constitution 32 14. Methods of Constitutional Amendment 34 xii Contents. Parts I., II. Chapter III. Nature of the Federal and State Governments; Their Relations. Page 15. Heferences 36 16. Division of Powers 37 17. Rule of Construction as to Powers Granted by Federal and State Constitutions . 39 18. Implied Powers under the Federal Constitution; Liberal Interpretation . . 4' 19. Supremacy of Federal Government in Exercise of Powers Granted 43 20. Limitations in the Federal Constitution on State and Federal Power 44 21. Limitations in the Federal Constitution for Protection of Personal Rights 45 22. Bills of Rights in State and Federal Constitutions . . 48 IV. Relations of Departments of Government to Each Other. 23. References ... 54 24. Departments Independent 55 25. Independence of the Executive 56 26. The Legislature Cannot Exercise Judicial Power . . 58 27. Judges of Courts Cannot Exercise Executive Functions 59 28. Impeachment of Officers through Legislatures ... 60 29. Legislative Power may not be Delegated 62 30. Checks and Balances in our Government 63 Part 1 1. ORGANIZATION OF GOVERNJVIENT. V. Legislative Departments. 31. References gc 32. Legislative Branches gc 33. Legislative Representation; Election and Qualifica- tion of Members ; Privileges 67 34. Organization and Methods of Legislative Business . . 70 35. Methods of Enacting Statutes 70 36. Limitations as to Methods of Legislation 72 Parts II., III. Contents. xiii Chapter VI. Executive Departments. Page 37. References 74 38. Organization of Executive Departments 74 39. The State Executive 75 46. Election of President 75 41. Term and Qualifications of President; Vacancy in Office 78 VII. Judicial Departments. 42. References 79 43. Selection of Judges 79 Part III. LEGISLATION. VIII. State Legislation. 44. References 81 45. Nature of Legislative Power 81 46. General Considerations as to Limitations on Legis- lation 83 IX. The Police Power. 47. References 85 48. General Scope of Police Power 85 49. Police Power Primarily in States 87 X. Punishment of Crime. 50. References j , 90 51. State Power as to Crimes in General 91 52. Federal Jurisdiction as to Crimes 91 53. The Crime of Treason 92 54. The Crime of Counterfeiting 94 55. Piracies ; Crimes on the High Seas ; Offences against the Law of Nations 95 56. Crimes in Places within Exclusive P'ederal Jurisdiction 96 57. Crimes within the Territories 9^ 58. Implied Power to Define and Punish Crimes .... 97 59. Ex Post Facto 'La.vs; Bills of Attainder 97 XIV Contents. Part III. Chapter XI. Public Property; The Eminent Domain. Page 60. References .... '°° 61. Rights of the Government to Acquire and Own Property 100 62. The Power of Eminent Domain 103 63. Constitutional Limitations on Eminent Domain ... 105 64. What is a Public Purpose I°5 65. Kind of Property Taken; Extent of the Right Ac- quired ..... . 109 66. Compensation for Property taken by Eminent Domain 112 67. Method of Procedure in Eminent Domain 117 XII. Taxation. 68. References "9 69. General Powers of Taxation . 120 70. State Power to Levy Taxes 122 71. What is a Public Purpose 124 72. What Property may be Taxed 127 73. Taxation of Government Officers or Agencies . . . 129 74. Due Process of Law as to Taxation ; Rule of Uniformity 131 75. Specific Limitations on State Power to Tax .... 133 76. Methods of State Taxation 134 77. Federal Taxation 135 78. Duties, Imposts, and Excises 137 79. Direct Taxation by Federal Government ; Income Tax 139 XIII. Financial Povs^ers other than Taxation. 80. References 143 81. Financial Powers of States 143 82. Power of Federal Government as to Money .... 145 XIV. Regulation of Commerce. 83. References 148 84. State Power over Commerce in General . I .... 150 85. Necessity for Federal Regulation of Commerce . . . 150 86. Provisions of Federal Constitution on Commerce . , 151 87. Concurrent State Power over Commerce 152 88. What is a Regulation of Commerce 153 89. Freedom of Commercial Intercourse Protected . . . 154 90. State Restrictions Invalid ; Further Illustrations . . . 156 91. Sale of Goods Brought into the State 158 92. State Taxation of Commerce 160 93. Federal Regulations of Commerce 161 Parts III., IV. Contents. xv Chapter XV. Corporations : Creation and Regulation. Pagb 94. References 164 95. Classes of Corporations 165 96. Powers of States as to Private Corporations .... 167 97. Public Corporations Classified 168 98. Power of Federal Government to Create Corporations 170 XVI. Other Enumerated Powers of Congress. 99. References 172 100. Naturalization 173 loi. Bankruptcy 177 102. Copyrights and Patents 178 103. Weights and Measures 181 104. Post-Of5ces and Post-Roads 181 105. Slavery and Peonage 182 106. Government of District of Columbia 184 107. Legislation as to Places Ceded to Federal Government 184 XVII. War Powers. 108. References 187 log. State Power as to War . 187 no. State Militia 188 111. Federal Power as to State Militia 189 112. The Army and Navy 189 113. Power to Declare War 190 114. Military Law . , 191 115. Subordination of the Military to the Civil Authority . 192 XVIII. Implied Powers of the Federal Government. 116. References 194 117. Implied Powers Expressly Given 194 118. Restrictions on the Exercise of Power by Congress . . 196 Part IV. EXECUTIVE POWER. XIX. General Nature of Executive Functions. 119. References 197 120. Historical View as to the Executive 197 Xvi Contents. Parts IV., V. Chapter XX. Administrative Functions; Appointing and Par- doning Power. Page 121. References 200 122. Administration and Enforcement of Law 200 123. Appointment of Officers 202 124. Pardons 204 XXI. Legislative Functions of the Executive; Veto Power. 125. References 206 126. Execntive Approval or Veto 206 127. Exercise of Executive Discretion 207 128. Executive Recommendations as to Legislation . . . 208 XXII. Military Powers. 129. References 210 130. President or State Executive as Commander-in-Chief . 210 131. Protection of the States against Invasion or Domestic Violence 211 XXIII. Diplomatic Relations; Treaty-Making Power. 132. References 213 133. Executive Authority in Diplomacy 213 134. Executive Authority as to Aliens 214 135. Treaty Power 215 136. Treaties are a Part of the Law of the Land .... 216 Part V. THE JUDICIARY. XXIV. General Nature of Judicial Power. 137. References 219 138. The Judiciary in General 219 139. The Judiciary of the States 221 140. The Law Administered in the State Courts .... 223 XXV. Jurisdiction of the Federal Judiciary. 141. References . . 224 142. Necessity for Federal Courts 224 143. General Jurisdiction of the Federal Courts 226 P"t V. Contents. xvu Chapter XXVI. Cases of Federal Jurisdiction. Page 144. References • 229 145. Constitutional Enumeration 230 146. Cases Arising under the Federal Constitution, Laws, and Treaties . ... 230 147. Cases Affecting Ambassadors, etc 232 148. Admiralty Cases 233 149. Cases to which the United States is a Party .... 234 150. Controversies between States 235 151. Controversies between a State and Citizens of Another State 236 152. Controversies between Citizens of Different States . . 237 153. Controversies under Land Grants of Different States . 238 154. Controversies between a State and Foreign States, or between Citizens and Aliens 239 XXVIL The Exercise of Federal Judicial Power. 155. References . . . ... 240 156. Jurisdiction by Original Suit . . 240 157. Jurisdiction by Removal . . 241 158. Jurisdiction by Appeal from State to Federal Courts . 242 XXVIII. Apportionment of Federal Jurisdiction 159. References .... 244 160. The Federal Judicial System . 244 i6r. Federal District Courts 245 162. Federal Circuit Courts 245 163. Federal Circuit Courts of Appeals 247 164. The Federal Supreme Court . 248 165. Other Courts Created by Congress . 250 166. United States Commissioners and Magistrates . . . 251 XXIX. The Law Administered in the Federal Courts 167. References 252 168. Distinction bjetween Law and Equity 252 i6g. The Common Law and the Law of the States . . . 252 170. Conflicting Jurisdiction of Federal and State Courts . 254 171. Authority of the Judiciary to pass upon the Constitu- tionality of Statutes 255 xviii Contents. Part VI. Part VI. THE STATES AND TERRITORIES. Chapter XXX. Relations of Federal and State Governments. Pagh 172. References . 256 173. Relations of States and Federal Government under the Constitution 256 174. Guaranty of Republican Government in the States . . 258 175. Guaranty against Invasion or Domestic Violence . . 259 176. Reconstruction of States . 260' XXXI. Admission of States. 177. References .... 262 178. Ratification by Original States 262 179. Admission of New States by Congress . . ... 262 i8o. Change of State Boundaries .... ... . 263 181. Re-admission of Seceded States .... .... 263 182. Steps for Admission of States ... ... . 264 183. Effect of Admission of States 264 XXXII. Territorial Governments. 184. References . 265 185. Territorial Power of Congress 265 186. The Constitution in the Territories 266 XXXIII. Relation of the States to Each Other. 187. References 268 188. States Independent; Inter-State Comity 268 189. Extradition of Criminals 269 190. Privileges and Immunities of State Citizenship ... 271 191. Faith and Credit to Acts, Records, and Judgments of the States 27-1 Parts VII., VIII. Contents. XIX Part VII. RELATIONS OF THE INDIVIDUAL TO THE GOVERNMENT. Chapter XXXIV. Citizenship. Page 192. References 275 193. Citizenship in Ae States 275 194. Citizenship in the United States by Birth .... 277 195. Citizenship in the United States by Naturalization . . 279 196. Privileges Pertaining to United States Citizenship . . 280 XXXV. Political Privileges. 197. References 284 198. Federal and State Privileges 284 199. The Fifteenth Amendment 285 200. Suffrage and Elections . 285 201. The Holding of. Office 287 202. Jury Service 288 Part VIII. CIVIL RIGHTS. XXXVI. Guaranties to the Individual. References 289 Natural Rights Protected 289 Classification of Individual Rights Specially Guaran- teed and Protected 292 Religious Liberty. References 295 Religious Equality 295 Taxation for the Support of Religion 297 Sunday Laws ; Blasphemy, etc 299 Religious Belief no Defence for Violating Law . . . 300 203. 204. 205. XXXVII. 206. 207. 208. 209. 210. XX Contents, Part VIII. Chapter XXXVIII. Freedom of Speech and the Press. Pack 211. References 301 212. Constitutional Provisions as to Expression of Opinion 301 213. Slander and Libel 302 214. Libels on Government and Injurious Publications . . 303 215. Defamation of Individuals 304 216. Privileged Publications 305 XXXIX. Rights of Assembly and Petition. 217. References 309 218. Peaceable Assembly 309 219. Right to Petition . . .... ... . 310 XL. Right to Bear Arms; Quartering of Soldiers. 220. References . .... 311 221. Keeping and Bearing Arms . . .... . . 311 222. The Quartering of Troops . . . . 312 XLI. Searches and Seizures. 223. References ... 313 224. Search and Seizure without Warrant . 313 225. Search Warrants . . . . . 314 XLII. Guaranties as to Prosecutions for Crime. 226. References . . 315 227. General Guaranties as to Prosecutions 315 228. Due Process of Law ... . . . 316 229. Presentment by Indictment 317 230. Capital or Otherwise Infamous Crimes ... . . 318 231. Courts-Martial ... 3ig 232. Twice in Jeopardy 315 233. Self-Crimination . , 320 234. Speedy and Public Trial 322 235. Trial by Jury ; Venue 322 236. Right to be Informed of the Accusation ... . 324 237. Right to be Confronted with Witnesses .... . 324 238. Compulsory Process for Witnesses 326 239. Right to Assistance of Counsel ... .... 327 240. Excessive Bail ; Cruel and Unusual Punishments . , 327 241. Writ of Habeas Corpus 320 242. Suspension of Habeas Corpus 331 243. Waiver of Constitutional Guaranties 331 Part VIII. Contents. XXI Chapter XLIII. Trial by Jury. ■' Page 244. References ^tt 245. Constitutional Provisions ' 333 246. Selection of a Jury 334 247. Evidence to the Jury ; Instructions 336 248. Verdict of the Jury 336 249. The Jury in Inferior Courts 338 250. The Jury in Equity Cases 338 251. Re-examination of Cases Tried by Jury 339 252. Waiver of Jury Trial 340 253. Modification of Trial by Jury 340 254. Expediency of Provisions as to Jury Trial 340 XLIV. Due Process of Law ; Equal Protection. 255. References 344 256. Constitutional Provisions as to Due Process of Law . 344 257. What is Due Process of Law 345 258. Effect of Legislation on Due Process of Law .... 347 259. What Persons are Entitled to Due Process of Law . . 349 260. What are Property Rights Protected by Due Process of Law 350 261. Freedom of Contract and of Labor 351 262. Equal Protection of the Laws 352 XLV. Impairment of Contract Rights. 263. References 355 264. Constitutional Provisions as to Contracts 356 265. Bankruptcy and Legal Tender Statutes 357 266. What Kind of Contracts are Protected from Impair- ment 358 267. Are Judicial Decisions Contracts 359 268. Statutory Privileges or Exemptions 360 269. Corporate Charters 361 XLVI. Vested Rights and Retroactive Legislation. 270. References 363 271. What Rights are Vested 363 272. Retrospective Legislation 364 xxu Contents. Appendix Appendix of Documents. Page A. Extracts from Magna Charta, 1215 369 B. The Bill of Rights, 1689 374 C. Virginia Bill of Rights, 1776 382 D. The Declaration of Independence, 1776 385 E. Articles of Confederation, 1781 389 F. The Northwest Ordinance, 1787 398 G. Constitution of the United States, 1789 405 INDEX 425 SUGGESTIONS FOR STUDENTS, TEACHERS, AND READERS. It seems desirable to impress upon the teacher who makes use of this book as a foundation for a course of instruction, and upon the reader who resorts to it to secure a general outline of constitutional law or information as to any particular question within the proper scope of the subject, that there has been no attempt to make it either easy or popular. It is assumed as desirable that such a book shall give as careful, thorough, and accurate a statement as can be made for a non-professional student of the estabhshed principles of constitutional law. Some discrimination has been necessary in selecting as topics for treatment those which are of general importance and as illustrations those which involve fundamental principles, and the most difiScult part of the task has been to state and illustrate such principles not only with clearness, but with such accuracy that they shall not be misleading when applied to the solution of other questions than those which have been specially con- sidered. In arrangement of topics a merely mechanical order such as that which might be indicated by the sequence of the provisions in the federal constitution, or of some state constitution which could be taken as a type, would evidently be unsatisfactory, and the author has therefore adopted a plan of arrangement accord- ing to his own judgment ; and the plan adopted must be com- prehended and intelligently followed if the relation of the diiferent parts of the subject-matter to each other and the proper connection for the discussion of each part are to be understood. It is inevitable that subjects may suggest them- selves to the teacher or reader in one connection which have xxiv Suggestions for Students, Etc. been discussed elsewhere, but the numerous brief cross-refer- ences will furnish the necessary assistance in finding the desired collateral matter. It is important that these cross-references be noticed, especially by the teacher, in order that the relations of the subject-matter of the chapters be fully appreciated as pre- sented. And the teacher should have in mind the necessity of covering the whole ground and not amplifying any one part to the exclusion of another. It would be a great mistake as affecting the practical success of the course of instruction to give so much time to the earlier portions of the book, relating to the nature, organization, and exercise of power by the different departments of the state and federal governments, that the final chapters, explaining the relations of the individual to these governments and the protection afforded under our constitutions to individual rights, should be slighted. Some chapters, especially those relating to the jurisdiction of the federal courts and the constitutional guaranties in criminal procedure, may seem to be so far technical as to be uninteresting. But the exercise of judicial power is a matter of constant public interest, and an intelligent appreciation of the functions of the judiciary, and especially of the relations between the federal and the state courts, is essential to a sound understanding of our governmental system ; and the teacher will find that his students have sufficient general interest in the proceedings of courts to enable them to follow the explanation of the practical application of constitutional principles in such proceedings. The list of references given in the first section of each chapter is not intended to furnish authorities to support the statements of the text nor to indicate the sources from which such state- ments have been drawn, but to suggest suitable parallel reading and afford opportunity for further study of the particular subject of the chapter, or some portion of it. But it would be unwise for either teacher or reader to allow himself to be so diverted from the subjects presented in the text as to lose sight of the essential principles. It is possible to extend collateral reading Suggestions for Students, Etc. xxv beyond its proper scope and thereby fill the mind with a con- fused mass of undigested information of little benefit in under- standing constitutional law proper, and misleading as to the deductions to be drawn from constitutional history. No effort has been made to present a complete bibhography of the sub- ject, for it reaches into several independent fields. A few standard books on constitutional law are constantly referred to, and in these general books can readily be found matter germane to chapters in which no specific reference to them is made. Other references are intended to facilitate the investigation of particular questions which may be thought to be of interest to the reader or student. In this connection the purpose with which references are given to judicial decisions in important cases should be noticed. In works intended primarily for lawyers such cases are referred to as furnishing the authoritative decision of specific questions involved, and they are to be understood and rightly applied only by understanding the exact legal question which the court was called upon to decide in the case presented to it. In this view cases can be satisfactorily studied only by those having a legal education. But on the other hand the judges writing the opinions in these cases, in explaining the reasoning on which they rely in reaching their conclusions, often expound estab- lished principles of constitutional law, and refer to the history of our institutions and the theory of our government as indicat- ing the interpretation to be given to the various clauses of the constitution itself; and their views are entitled to as great weight as those of an author discussing the same subject-matter. For the purposes of this book, therefore, cases are referred to as furnishing such an exposition, rather than as deciding particular points. The lawyer looking at a case as furnishing a precedent, attaches more importance to the point decided than to the explanation of the reasons taken into account by the judges in reaching their conclusions, although he does, of course, notice the reasoning for the purpose of determining whether the con- xxvi Suggestions for Students, Etc. elusion reached would be applicable in a similar case which he has under consideration. But for the purposes of the general reader the reasoning of the judges is more important than the technical decision in the case, for frequently the ultimate result depends on the solution of questions strictly legal in their nature. However, cases involving constitutional questions usually turn on the interpretation of the language of some pro- vision of the constitution itself, and are therefore often more intelligible to the general reader than are decisions on other legal questions. Although the cases referred to are usually those decided by the Supreme Court of the United States, it is not to be understood that the expositions of constitutional law found in the decisions of state courts are not equally interesting and valuable. But it is obvious that a decision of the highest judicial tribunal of the country is of more general interest than that of a state tribunal relating to the same subject, even when the subject is one as to which the decision of the federal supreme court is not controlling; and the fact that nearly all the fundamental guaranties found in the state constitutions are also found in some form in the federal constitution has made it possible on nearly every question discussed to refer to some important case decided by the Supreme Court of the United States. This book will but poorly serve the purpose for which it was written if it does not impress upon teacher and reader the fact that as to fundamental matters we have a well-established and fully matured constitutional system ; that the solution of difficult questions about which there may be much controversy will finally be reached by applying principles which are well settled ; and that the development of our constitutional system and the solution of difficult questions which have heretofore arisen have not been the result of the triumph of any one party or faction, but, unconsciously, of all the influences tending to mold our system of government into its present form, and that their combined effect has been determined, not by the wisdom Suggestions for Students, Etc. xxvii and judgment of the few, but by that indeterminate and im- measurable power which imparts vitality to national life. Finally,, the teacher should bear in mind that the ultimate purpose of any course of instruction in constitutional law must be to furnish to the student guidance in the interpretation of the constitutions themselves. The student should be constantly required to recall the very language of the constitutional instru- ments. While it is not practicable to give the same detailed attention to the language of any state constitution, it would be advisable to require students to provide themselves with copies of the constitution of the state in which instruction is given and to familiarize themselves with it, comparing its provisions, so far as possible, with those of the federal constitution. In the Appendix will be found not only the Federal Con- stitution, but the English Bill of Rights, the Virginia Bill of Rights, and other important documents of English and American constitutional history, and students should be encouraged to ■become familiar with such constitutional documents. SMALL REFERENCE LIBRARY. The following list indicates convenient books which the teacher and student ought to have access to for purposes of collateral reading on subjects directly involved in Constitutional Law. The latest edition is indicated in each case, although in most cases any edition will serve the purpose. Suggestions for a broader scope of reading are found in the Select Bibli- ography and in the lists of references at the beginning of each chapter. Taswell-Langmead, Thomas Pitt. English Constitutional History, from the Teutonic Conquest to the Present Time. (5th ed., 1896.) Story, Joseph. Commentaries on the Constitution of the United States. (2 vols, sth ed. by Bigelow, 1 891, includes the addi- tional matter found in the 4th ed. by Cooley.) xxviii Suggestions for Students, Etc. Hamilton, Alexander, and Others. The Federalist: A Collec- tion of Essays written iti favor of the New Constitution. (Ed. by Lodge, 1888.) CooLEY, Thomas McIntyre. A Treatise on the Constitutional Limitations which rest on the Legislative Power of the States of the Atnerican Union. (7th ed. by Lane, 1903.) CoOLEY, Thomas McIntyre. The General Principles of Con- stitutional Law in the United States of America. (3d ed. by McLaughlin, 1898.) Hart, Albert Bushnell. ActualGovernment as applied under American Conditions. (American Citizen Series, 1903.) McClain, Emlin. a Selection of Cases on Constitutional Law. (1900.) or Thayer, James Bradley. Cases on Constitutional Law, with Notes. (2 vols., 1895.) Hill, Mabel. Liberty Documents, with Contemporary Expo- sition and Critical Comments drawn from various writers. (Ed. by Hart, 1901.) SELECT BIBLIOGRAPHY OF CONSTITUTIONAL LAW. In the following classified list the standard books are collected which may properly be consulted as bearing on the general sub- ject-matter of constitutional law or history. The date of the first publication is usually given, but the number and date of the last edition, if there has been more than one, is not specially in- dicated, unless it is deemed important. Some works of a general character are here mentioned which are not cited in the chapter references. Monographs and articles in periodicals cited in the chapter references as furnishing interesting discussions on special topics are not included in this list, but are sufficiently described in the references under the chapter headings. I. Constitutional History. The standard constitutional histories of England will furnish in- formation as to the principles of government which were familiar to the framers of our state and federal constitutions and the contro- versies which emphasized or led to the recognition of these princi- ples and afforded the occasion for the insertion of particular guaranties in our fundamental instruments of government. The various histories of the United States explain in greater or less detail the development of our constitutional system and contain frequent references to matters germane to constitutional law. Tasvi^ell-Langmead, Thomas Pitt. English Constitutional History^ from the Teutonic Conquest to the ^present time. (1875 ; 5th ed. 1896.) — A concise but comprehensive history of the origin and development of the English constitution intended primarily as a text-book for students. Taylor, Hannis. The Origin and Growth of the English Con- stitution. (2 vols., 1889, 1898.) — This work by an American author is interesting because it treats of the growth of the XXX Select Bibliography. English constitution, with particular reference to those matters which are important to the students of American constitutional law. Stubbs, William. The Constitutional History of England in its Origin and Development. (3vols., 1873-1878.) — A standard work, relating to the early history. Hallam, Henry. Constitutional History of England from the Accession of Henry VII to the Death of George II. (2 vols., 1827, and later eds.) — This is also a standard work, covering important topics of English constitutional history, but not the earliest period nor the period of the controversy between the American Colonies and the Crown. May, Sir Thomas Erskine. The Constitutional History of England Since the Accession of George III, 1760-1860. (2 vols. 1861,1863. Later editions. 3 vols. 1895.) — This is substantially a continuation of Hallam, and covers the Colonial Period. HoLST, Hermann Eduard Von. Constitutional and Political History of the United States (transl. by Lalor and Mason, 7 vols, and Index vol., 1877-1892.) — This treatise was originally written while its author was a professor in a German university. He subsequently became professor of law and history in an American university and pubhshed a short treatise on The Constitutional Law of the United States (transl. by Mason, 1887), which covers very accurately the principles of our federal system but is too brief to be especially valuable for collateral reading. His main historical treatise is largely devoted to the discussion of political questions, especially the conflict as to the extension of slavery. Adams, Henry. History of the United States During the Ad- ministrations of fefferson and Madison. (9 vols., 1889-1891.) — Special attention is given to constitutional questions arising during the early period of our national existence. Curtis, George Ticknor. Constitutional History of the United States. (2 vols., 1889, 1896.) —Volume I is a new edition of the same z.\x'A\0'c''& History of the Constitution (2 vols., 1854), and Volume II covers the subsequent development of our constitutional system. Select Bibliography. xxxi Hart, Albert Bushnell, editor. The American Nation, A History from Original Materials by Associated Scholars. (26 vols, and Index and Atlas vols., in progress, 1904.) — A co-opera- tive work, including in its various volumes the beginnings and development of our constitutional system. II. Formation and Adoption of Federal and State Constitu- tions. The Federalist, A Collection of Essays Written in Favor of the New Constitution. (1788, latest ed. by Lodge, 1888.) — The essays were published separately as political pamphlets or con- tributions to periodicals during the period of the discussion in New York as to the ratification of the proposed federal constitu- tion by that state. Their authorship was not announced at the time, but they were in fact prepared by Alexander Hamilton, John Jay, and James Madison. They contain a valuable con- temporaneous exposition of the important features of the pro- posed constitution and are constantly referred to in works on constitutional law and history of the United States. Bancroft, George. History of the Formation of the Constitu- tion of the United States. (2 vols., 1882, reprinted as Vol. VI of his History of the United States of America (author's last rev., 6 vols., 1884-1885.) — This final part of Bancroft's History is substantially an independent work on the formation of the Con- stitution of the United States and its adoption in the states. It is popular in character, but quite fully discusses the questions in controversy at that time with reference to the nature of the federal government. Fiske, John. The Critical Period of American History. (1888.) — A popular account of the poMtical history of the United States from the end of the Revolutionary War to the adoption of the federal constitution, explaining the conditions under which the federal government was instituted. Jameson, John Alexander. The Constitutional Convention ; Its History, Powers, and Modes of Procedure. (1867.) — This work was written during the Reconstruction Period, when the powers of and procedure in constitutional conventions was the subject of much controversy ; but it is fundamental in treatment, xxxii Select Bibliography. dealing with sovereignty and other subjects involved in the making of constitutions, and contains valuable data as to the original state constitutions and the admission of states by Con- gress, as well as the constitutional conventions held in the southern states during the period of secession and reconstruc- tion. Jameson, John Franklin. Essays on the Constitutional History of the United States in the Formative Period, 1775-1789. (1889.) — An interesting discussion of controversies which arose during the early period of our history. BoRGEAUD, Charles. Adoption and Amendment of Constitu- tions in Europe and America. (1893. Transl. by Hazen, 1895.) — This is a brief work of comparative constitutional law, dis- cussing the general exercise of the function of constitution making. PooRE, Ben. Perley. The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the United States. (2 vols., 1877.) — A compilation of matter valuable for comparison, much of which is not otherwise readily accessible. III. Theory of Our Crovernment. Wilson, James. Lectures on Law (in his Works, ed. by Bird Wilson, 1804, last ed. by Andrews, 1896). — This is a pubhca- tion of the first course of law lectures delivered in any American university, but it is so largely devoted to an exposition of the theory of government that it is properly referred to under this head. The author was one of the delegates from Pennsylvania to the Constitutfonal Convention and one of the signers of the Constitution. Subsequently he was the able advocate of the ratification of the proposed constitution in his state, and later a justice of the supreme court of the United States. What he says is of interest as a contemporaneous exposition of the theories entertained by one who was active and influential in the Con- vention itself and in securing the ratification of its work. LiEBER, Francis. Civil Liberty and Self-Government. (1853; 3d ed. by Wolsey, 1880.) Also, Contributions to Political Science. (Vol. II of his Miscellaneous Writings, i88i.) — Dr. Select Bibliography. xxxiii Lieber exercised a large influence in arousing interest in the theory of our government. His books are popular in their method of treatment. Burgess, John W. Political Science and Comparative Constitu- tional Law. (2 vols., 1890 ) — This is a philosophical treatment of the theory of government from a comparative standpoint. Bateman, William O. Political and Constitutional Law of the United States of America. (1876.) — One of the first efforts to present in a methodical manner the theory of our state and federal systems as interdependent. Wilson, Woodrow. The State; Elements of Historical and Practical Politics. (Rev. ed., 1900.) — An extremely thought- ful and discriminating presentation of the nature of the state from a philosophical point of view. WiLLOUGHBY, Westel Woodbury. The Nature of the State. (1896.) — A philosophical discussion of the grounds on which the exercise of authority by government may be justified. HuRD, John Codman. The Theory of Our National Existence. (1881.) — An extremely theoretical discussion of the nature of our government, especially with reference to the doctrine of sovereignty. Fisher, Sidney George. Evolution of the Constitution of the United States. (1897.) — An interesting account of the develop- ment of our written constitutions from the Cplonial Charters. IV. Description of Actual Government in the United States. Tocqueville, Alexis DE. Democracy in America. (1835-1840. Transl. by Reeve; new ed. 1889.) — This extremely interest- ing account of our government as it appeared to a foreigner when our institutions were still but little understood, even in America, has been constantly referred to as an illuminating description of their actual operations. Bryce, James. The American Commonwealth. (1889. 3d ed. 1895; abridged by Macy, 1896.) — This account of the actual public life of the United .States, written after a careful and in- telligent study of its constitutional and political systems, is discriminating and very suggestive. It is popular in character. xxxiv Select Bibliography. Hart, Albert Bushnell. Actual Government as Applied under American Conditions. (American Citizen Series, 1903.) — The practical working out of our constitutional system through state and federal governments is fully explained, and a large , amount of detailed information is given. Macy, Jesse. Our Government. (Rev. ed., 1890.) — A school text-book on civil government. V. Technical Works on Constitutional Law. Story, Joseph. Cojnmentaries on the Constitution of the Utiited States. (2 vols., 1833 ; 4th ed. by Cooley, sth ed. by Bigelovif, 1891.) — This is a fundamental exposition of the federal consti- tution and its early amendments. The author was a professor in the Harvard Law School and an associate justice of the Supreme Court of the United States. The soundness of his views of our constitutional system, so far as it had been developed in his time, cannot be questioned. To some extent it is also a consti- tutional history, Book I being devoted to the Colonies, Book II to the Revolution and the Confederation, and the first part of Book III to the origin and adoption of the federal constitution. The fourth edition, by Thomas M. Cooley, contains additional chapters with reference to the later amendments, which are retained in the last edition. Cooley, Thomas M. A Treatise on the Constitutional Limita- tions which rest upon the Legislative Power of the States of the American Union. (1868; 7th ed. by Lane, 1903.) — This book was the first systematic attempt to discuss the effect of constitutional limitations on the exercise of power by the states ; and it remains one of the ablest and most instructive expositions of the constitutional system from a legal standpoint. It is a classic, ^ndthe views of the author are constantly cited in the decisions of the courts as authoritative with reference to the meaning and interpretation of the general provisions of the state and federal constitutions, especially as limitations upon legisla- tive power. Tucker, John Randolph. The Constitution of the United States: A Critical Discussion of its Agencies, Development, and Interpretation. (2 vols., 1899.) — This is the latest complete Select Bibliography. ' xxxv and systematic exposition of the federal constitution from a legal standpoint. The author also deals fully with the sources and limitations of governmental power, and makes constant and instructive references to the development of our constitutional principles from English sources. Hare, J. I. Clark. American Constitutional Law. (2 vols., 1889.) — A course of lectures, giving a full account of the history of our institutions and the theory of our government, as well as of the important questions which have been decided by the courts in the interpretation of the federal and state constitutions. POMEROY, John Norton. An Introduction to the Constitutional Law of the United States. (i868 ; 9th ed., 1886.) — A concise but fundamentally sound and careful exposition of constitutional law for students. Miller, Samuel F. Lectures on the Constitution of the United States. (1891 .) — This short course of lectures on constitutional law was published after the author's death. As containing in concise form the views of one of the ablest of the associate justices of the supreme court of the United States on funda- mental questions, many of which had been considered in opinions written by him, this book is of great interest ; but the discussions are in general too brief to be cited with satisfaction. Foster, Roger. Constitution of the United States. (Vol. I, 1895.) — The first volume contains interesting and valuable matter, but the work remains incomplete. Kent, James. Commentaries on American Law. (4 vols., 1826- " 1830; 14th ed., 1896.) — This standard treatise on law contains matter which is valuable from a constitutional standpoint, especially the exposition in Part II of the jurisdiction of the federal court. Cooley, Thomas M. The General Principles of Constitutional Law in the United States of America. (1880; 3d ed. by McLaughlin, 1898.) — This is a students' book, written by the eminent author of Constitutional Limitations., but the scope is broadened to cover the entire subject of constitutional law while xxxvi Select Bibliography. the exposition is condensed into rather brief and dry statements. References are made throughout to adjudicated cases. Black, Henry Campbell. Hand Bool of American Constitu- tional Law. (1895 ; 2d ed., 1897.) — A students' book. Covers quite fully the usual ground, with citation of authorities on each point. Dicey, A. V. Lectures Introductory to the Study of the Law of /^£ [British] Constitution. (1885.) — An analytical description of the British constitution according to present conceptions, dis- tinguishing between the parts which have the character of law and those parts which are only usage. The book is interesting on some questions as to which a parallel may be drawn between the English and the American constitutional systems. Blackstone, Sir William. Commentaries on the Laws of England. (1765-1769. Last American ed. by Hammond, 1890, with notes.) — This eminent and frequently quoted work on the English law is especially valuable as showing the condition of English jurisprudence at the time the Colonies became inde- pendent. In Book I the constitution of England is quite fully described. An American edition was printed (1771, 1772) almost immediately after the completion of the English edition and was widely sold. VI. Judicial Decisions. The decisions of the highest courts, especially of the Supreme Court of the United States, furnish very valuable material for the study of the history of the Constitution and the theory of govern- ment, and they furnish the only authoritative interpretation of the ■ provisions of our written constitutions, so far as the application of those provisions is to be made in judicial tribunals. For the information of those who are not familiar with the use of the volumes of reported decisions of the various courts it should be stated that references are to particular cases by name, followed by the volume and page of the report (the number of the volume pre- cedes and the number of the page follows the name of the series of reports) wherein the case is found. Where cases from state courts are referred to the state is indicated. The reports of the Supreme Court of the United States were for years issued and referred to under the names of the successive reporters, as follows ; Dallas Select Bibliography. xxxvii (4 vols.) ; Cranch (9 vols.) ; Wheaton (12 vols.) ; Peters (16 vols.); Howard (24 vols.) ; Black (2 vols.) ; Wallace (23 vols.). Refer- ences to the volumes subsequent to those of Wallace are now almost universally made as though there were a continuously num- bered series of volumes from the beginning, the next volume after 23 Wallace being cited as 91 U. S. The cases in the volumes of Dallas, Cranch, Wheaton and Peters, and the first eighteen volumes of Howard, are also published, somewhat abridged, in a series cited as " Curtis' Decisions." The decisions of the court are now pub- lished as soon as they are announced, in The Supreme Court Reporter, a periodical. Cases specially referred to in the text are indicated by name only, but the full citation for each is given in the references for the chapter. Cases thus referred to in the text are also included in the Index. Several collections of cases have been made which are convenient for the use of those who have not access to the volumes of the re- ports, as follows : McClain, Emlin. a Selection of Cases on Constitutional Law. (1900.) — A few of the'leading cases on each branch of constitu- tional law are given, the cases selected for the most part being those which are suitable for the use of students. Thayer, James Bradley. Cases on Constitutional Law, with notes. (2 vols., 1895.) — Professor Thayer has developed some branches of constitutional law very fully through cases from the state and federal courts, but has not attempted to cover all the topics which may be considered as within its proper scope. Boyd, Carl Evans. Cases on American Constitutional Law. (1898.) — This collection is a very convenient one as a basis for a short course of instruction, but many of the cases are so abridged as to render it unsuitable as a book for collateral read- ing. Dillon, John M. Marshall: Complete Constitutional Decisions, Annotated. (1903.) — In many of the most important cases on constitutional law decided during the early period of our consti- tutional history, the opinions were written by Chief-Justice Marshall, and this collection is therefore a convenient one for collateral reading on important questions. xxxviii Select Bibliography. VII. Bibliographies. The select bibliography of American government given in Hart's A ciua/ Governmeni (American Citizen Series, 1903, pp. xiii-xxxiv), includes the principal authorities which can be usefully consulted "with reference to constitutional law and many monographs and articles on special topics of the subject. In the same author's Handbook of the History, Diplomacy and Government of the United States (1901), there are also extensive lists of references to treatises, articles and cases relating to different constitutional topics. At the end of Fiske's Critical Period of American History there is an extended bibliographical note. Many references are collected at the end of Vol. II of the final edition of Curtis' Consti- tutional History of the United States, where is to be found a bibliography of the Constitution prepared in 1896 by Paul Leicester Ford. Constitutional Law in the United States. Constitutional Law in the United States. Part I. System of Government. CHAPTER I. CONSTITUTIONAL GOVERNMENT. 1 References. Constitutional History : T. P. Taswell-Langmead, English Con- stitutional History; Hannis Taylor, Origin and Growth of the English Constitution, Introd. and ch. i ; John Fiske, Beginnings of New England, ch. i; J. R. Tucker, Constitution, chs. i, iv ; J. I. C. Hare, Constitutional Law, chs. i, iii, viii ; J. F. Jameson, Essays in Constitutional History; James Wilson, Lectures on Jurisprudence (Andrew's ed.). Weiiten and Unwritten Constitutions : W. C. Morey, Genesis of a Written Constitution (Am. Acad, of Pol. Sci. Annals, I, 529) ; Brooks Adams, Embyro of a Commonwealth (Atlantic Monthly, LIV, 610) ; J. H. Robinson, Original and Derived Features of the Constitution (Am. Acad, of Pol. Sci. A?tnals, I, 203) ; A. V. Dicey, The Law of the (British) Consti- tution, Introd. and chs. i, xv ; T. M. Cooley, Comparative Merits of Written and Prescriptive Constitutions (Am. Law Rev., XXIII, 311) ; J. H. Bur- gess, Political Science and Constitutional Law, 1, 137-154 ; Emlih McClain, Unwritten Constitutions in the United States (Harv. Law Rev. XV, 531) ; S. G. Fisher, Evolution of the Constitution of the United States ; Charles Borgeaud, Adoption and Amendment of Constitutions. Sovereignty : T. M. Cooley, Constitutional Limitations, chs. iii, vii ; J. A. Jameson, Constitutional Conventions, ch. ii ; P. Bliss, Sovereignty ; J. A. Jameson, National Sovereignty (Pol. Sci. Quart. V, 193) ; J. C. Hurd, 3 4 Constitutional Government. [§ 2 Theory of Our National Existence ; J. Dewey, Austin's Theory of Sover- eignty {Pol. Sci. Quart., IX, 31) ; D. G. Ritchie, Conception of Sovereignty (Am. Acad, of Pol. Sci. Annals, I, 385) ; W. W. Willoughby, Nature of the State, ch. ix ; Henry Sidgwick, Elements of Politics, ch. xxxi ; Theodore Woolsey, Political Science, §§ 72, 73 ; W. O. Bateman, Political and Con- stitutional Law of the United States ; I. B. Richman, From John Austin to John C. Hiird (Harv. Law Rev. XIV, 353) ; I. B. Richman, Law and Political Fact in the United States {Atlantic Monthly, LXIV, 205). Unconstitutionality of Statutes : Joseph Story, Commentaries on the Constitution, §§ 373-456; T. M. Cooley, Constitutional Limitations, ch. vii ; The Federalist, No. 78 ; J. B. Thayer, Origin and Scope of the American Doctrine of Constitutional Law {Harv. Law Fro., VII, 129); T. M. Cooley, Federal Supreme Court — Its place in the American Consti- tutional System {Pol. Sci. I^ectures, Univ. of Mich., 1889) ; A. B. Hart, Actual Government (Am. Citizen Series), §§ 135-146 ; J- B. Thayer, Cases on Constitutional Law, I, notes pp. 146-154, 157, 175, 183; Marbury v. Madison (1803, I Cranch, 137 ; i Curtis' Decisions, 368 ; Thayer's Cases, 107; McClain's Cases, 815; Boyd's Cases, 17; Marshall's Decisions, Dillon's ed., i); Eakin v. Raub (Pa. 1825, 12 Serg. & Rawle, 330; Thayer's Cases, 133) ; Opinion of the Justices (1878, 126 Mass. 557 ; Thayer's Cases, 178) ; In the Matter of the Application of the Senate (1865, 10 Minn. 78 ; Thayer's Cases, 181). Initiative and Referendum: E. P. Oberholzer, Referendum m America ; James Bryce, American Commonwealth, I, ch. xxxix ; T. A. Sherwood, Initiative and Referendum under the United States Constitutiott (Centr. Law Jour. LVI (1903), 247); Kadderly v. Portland (Oregon, i9°3' 74 Pacific Reporter, 710). 2. Constitutional La-w as Related to Constitutional History. The proposition that governments exist for the benefit of the governed, and not merely for the advantage of those who exercise the powers of government, is not original with the American people. It had been recognized as fundamental by many writers before the Revolution, and is a necessary out- come of the fact demonstrated by human experience, that as between a single ruler, or a small ruling class, and the mass of the people who are ruled, the great preponderance of power and resource is with the latter. This consideration has made it essential that all rulers or governing classes shall at least pre- tend to administer government for the benefit of the governed. The tendency of civilization towards the betterment of the people as a whole, and the recognition by Christianity of the § 2] Constitutional History. ^ individual as entitled to consideration on his own account as a human being, have co-operated with the primary necessity of recognizing the welfare of the governed, in bringing about a constant pressure for the improvement of government and of the institutions which are supported or recognized by govern- ment. The result in human history has been to produce changes, more or less gradual, in government and institutions; so that in any state or nation a system of government, and the institutions existing under it, must be regarded as the result of a development due to the action of this constant pressure. Human institutions must be studied in the light of their his- torical origins and progress. They do not spring into exist- ence spontaneously without relation to that which has gone before ; they are not the result of conscious creation. New conceptions or ideals on the part of those who have controlling influence in shaping institutions may result in modifications, and new circumstances or conditions almost certainly lead to changes. But changes will necessarily be gradual, and usually by adapting to the new conditions that which is in existence. This will be peculiarly true under a system of government rec- ognizing a distribution or division of powers among several departments. Revolutions in society or government are usually found on examination to be more apparent than real. Changes, no matter how radical or sudden, commonly spring out of causes having a connected and definite history. In a government in which a considerable portion of the people exercise a control- ling influence, changes in form as well as in substance will be gradual ; or if sudden, the institutions which taost nearly affect the general welfare will alter least and most slowly. The people of the colonies of Great Britain in America who, by declaring their independence and organizing state govern- ments and subsequently the federal government as it now exists, laid the foundations and determined the form of our present system, were for the most part of English descent, and before independence was declared were British subjects claim- ing rights which they believed themselves entitled to as such 6 Constitutional Government. [§ 3 subjects. The governments of the colonies derived their authority from the British crown; the institutions prevail- ing in the colonies were almost wholly British institutions, the history of which is to be traced in the history of the people of Great Britain ; and the theories of government prevailing were such as were familiar to English people, modified, however, to meet the new conditions under which the colonists lived. To understand our institutions and the principles of our govern- ment, constant recourse must be had to the government and institutions of Great Britain as they existed just prior to and during the colonial period. The constitutional history of Great Britain will therefore furnish a basis for the comprehen- sion of the constitutional history of the United States. Constitutional history is, however, to be distinguished from constitutional law. By the latter term is meant the rules and principles in accordance with which the powers of government are exercised. To understand the development of those rules and principles, and their origin, and true nature, it is necessary to look to constitutional history ; but the determination, with such definiteness as is practicable, of what those rules and principles actually are at the present time, is within the prov- ince of constitutional law. These rules and principles are not to be understood, however, without constant reference to the course of their development, and constitutional law is therefore dependent upon constitutional history. 3. Features of Our System of Government of British Origin. Although our system of government has many elements not found in the British system, in the following respects the government and institutions of the people of Great Britain furnish the explanation for corresponding characteristics of the government and institutions of the people of the United States. ( I ) The recognition of a considerable measure of local self- government ; that is, the right of the people of distinct com- munities or divisions to determine in some way for themselves the rules and regulations for their own conduct, so far as the § 3] British Antecedents. 7 welfare of the whole people is not thereby prejudiced. (2) Participation in the exercise of the powers of government by representatives of different communities or divisions, collected together in some legislative body, as, for instance, in England the Parliament, in the states the legislatures, and in the United States the Congress. Direct election of all these representa- tives by popular vote is not essential to the representative character of such a legislative body, although the present ten- dency in both countries is to entrust the selection of such representatives to popular suffrage. (3) Constitutional Hmi- tations on the powers of those who exercise public authority, imposed not merely by the will of those who exercise the power of government, but resting on some higher sanction, and assumed to be of such binding force that they ought to be acknowledged and respected. It is not essential, however, to the existence of constitutional government that these limita- tions rest on any definite authority, or that they be enforcible in any specific manner. (4) Distribution of the powers of government among distinct departments, and their exercise by different persons or classes of persons. It was theoretically assumed by those who attempted to state in a philosophical way the nature of the British constitution at the time the state and federal governments were organized in the United States, that the powers of the government of Great Britain resided in and were exercised by the king, the Parliament, and the courts, and that these three departments were to a consider- able extent co-ordinate and independent of each other. The subsequent historical development of the British government has, however, resulted in the subordination of the authority of the king to that of Parliament ; and in Pariiament the House of Lords has acknowledged the ultimate authority of the House of Commons, so that at this time there is no longer, if there ever was, a real balancing of power among the three so-called departments of the British government. In the United States, however, the division of powers among the three departments was actual in the colonial period, and continues, in fact, defi- nite in the state and federal governments, where the legisla- 8 Constitutional Government. [§ 4 tive, executive, and judicial functions are practically, as well as theoretically, distinct and independent. 4. Popular Sovereignty; Initiative and Referendum. As the result of what were deemed unwarranted assertions of power, and unjust exactions on the part of the crown and Parliament of Great Britain with reference to the government of the American colonies, there was violent excitement among the people of the colonies prior to the Declaration of Inde- pendence, leading to animated discussion of theories of natural rights and the powers of government. Many of the ideas on these subjects which were entertained and advocated by lead- ing men of the time were expressed in language current in France among critics of the monarchical system of government, which had existed there, since the feudal age, with little direct limitation upon its power or representation of the popular will. In France, the natural rights of man, the doctrines of liberty, equality, and fraternity, and the notion that government rested upon an implied social compact to which the governed were parties were widely exploited ; and the resulting agita- tion culminated in the French Revolution of 1789, by which monarchical institutions were overthrown, and a pure republic temporarily substituted. These philosophical theories were, however, not peculiar to France. Some of them were of English origin, and were common among the philosophers of the time in England and in Europe ; but in England they did not, as in France, result in immediate modification of the gov- ernment or institutions. To the exploiting of so-called natural rights, or the rights of man, and the recognition of the social compact as the founda- tion of governmental authority (see below, § 204) may be attributed the formal announcement in the Declaration of Inde- pendence, and in the constitutions of many of the states, of the doctrine of popular sovereignty, with the corollary that those who exercise the powers of government are vested onlv with authority conferred upon them in some form by the people. The practical result was that state and federal constitutions were § 4] Popular Sovereignty. 9 framed on the assumption that sovereign power is fo.und in a general way in the body of the people who are to be governed under such constitutions ; that the departments of government provided for thereunder can exercise only such general author- ity as is given them by the constitution ; that any authority asserted in excess of such granted powers, or in violation of restrictions imposed, is unconstitutional ; and that acts per- formed in the attempt to exercise such authority are ipso facto void. It is only so far, however, as the theoretical principles of popular sovereignty, announced in the Declaration of Inde- pendence and in the early state constitutions, are practically recognized and protected by the state and federal constitu- tions, that they have any legal significance. No provision is made in any of these constitutions for the active exercise by the people of the powers of sovereignty, save as those who may be given the elective franchise are authorized to express their will by the ballot. The voters have no power except that given them under the constitution, and therefore the general and ultimate powers of sovereignty which reside in the body of the people can be practically exereised only by revolution. But by giving to the people a general voice through their electors in the selection of representatives, the government is made responsive to the actual will of the people to such an extent that occasions for revolution will be indeed rare; and it is not likely that at any time the will of the people will be so far repressed by, or unrepresented in the government, that revolu- tion will be justifiable on moral grounds. Whatever may be the moral grounds for revolution, any change in the form of government or interference with the action of the duly consti- tuted authorities, save by a modification of the fundamental law in the method authorized by the constitution, will be un- constitutional. There has recently been developed in this country a ten- dency to introduce the initiative and referendum in matters of legislation, and the subject may properly be referred to here because it illustrates a radical departure from English notions I o Constitutional Government. [§ 4 as to the functions of the people in affairs of government. The initiative, so called, is an application by voters on their own motion to have a proposed statute enacted into law by the legislature, or submitted to vote of the electors for the purpose of determining whether it shall become a law ; and the refer- endum is the submission to the vote of the electors of the ques- tion whether a measure thus proposed or statutes passed ^by the legislature shall become a law. These methods of securing or determining upon specific legislation have for a long time been known and applied in Switzerland, and recently, by con- stitutional provisions, in South Dakota (1898) and in Oregon (1902). A similar constitutional provision has been con- sidered in the legislature of Missouri (1903). The agitation in favor of this form of legislation is based on the assumption that the ultimate power resides in the people, and that they should have the opportunity of acting directly through the qualified body of electors if they see fit to do so, instead of through the legislative department of the government. It is apparent, however, that such an exercise of legislative power on the part of the people is inconsistent with the general theory of our government, which involves action of the people through representatives and the division of the functions of government among distinct departments. Indeed, it is still open to dis- cussion, notwithstanding the attempts to introduce the initiative and referendum, whether the exercise of the powers of gov- ernment by the people through the electoral body is not in violation of the provision of the federal constitution (Art. IV, § 4), that each state shall have a republican form of govern- ment, for it may well be contended that a republican form of government necessarily involves the exercise of the powers of government by representative oflficers and bodies and the distribution of the powers of government among distinct and independent departments. The practical objections to this form of legislation are that a small body of chosen representatives can perfect the details of legislation much more effectively than the large body of electors, and that legislative power should be exercised under § s] Initiative and Referendum. 1 1 the restriction of constitutional limitations, which cannot be effectively applied if legislation rests directly upon the popular will. The fundamental constitutional rights of liberty and property should be as fully protected against the will of the majority of the people as they are against the action of the departments of government. The generally recognized policy of submitting local police regulations to popular vote to deter- mine whether they shall go into effect in particular localities (see below, § 29) is not strictly analogous to the referendum, for in such cases, the general statutes under which such police regulations are submitted for adoption or rejection in the par- ticular localities are adopted in the regular manner by the legislative department, and are valid as general laws, while the theory of the initiative and referendum is that the statute itself shall be proposed or enacted by the voters. It may be suggested that such a radical change in our theory of govern- ment is of doubtful expediency and should be considered in all its bearings and with a view to all its possible consequences before it shall be accepted. 5. Written and Unwritten Constitutions. The constitution of a government is the body or collection of rules and principles in accordance with which the powers of that government are exercised ; and a constitutional govern- ment is one the powers of which are exercised in accordance with rules and principles which are generally accepted as bind- ing upon it and usually followed. In this proper and usual sense all the governments of civilized peoples are constitu- tional, whether they be monarchical or republican. If the body of rules and principles is not reduced to definite and authoritatively written form, the constitution is said to be un- written, as in the familiar case of Great Britain. The body of rules and principles defining the nature of the British govern- ment and prescribing the persons who exercise authority under it and the scope of such authority is to some extent de- clared in statutes which are a part of the written law ; to a further extent is composed of rules of law recognized by the 1 2 Constitutional Government. [§ ; courts, without any written basis, and therefore a part of the unwritten law ; and to a still further extent consists of conven- tions or customs which though generally recognized and fol- lowed, do not have the force of law. An example of a statute which is regarded as a part of the constitution is the Habeas Corpus Act (1679) which declared more fully the duty of those holding persons under commitment for criminal offences to make prompt response to orders of the judges to show the nature of the authority under which the prisoner was detained, in order that the lawfulness of the detention might be judi- cially inquired into. (See below, § 241.) One of the rules of the unwritten law which is regarded as a part of the consti- tution is the principle that the king can do no wrong, and that his ministers, or others pretending to act under his authority, are themselves personally accountable for any viola- tion of law, even though committed, as a matter of fact, under the king's command. A constitutional custom which has not the force of law may be illustrated by the practice that the cabinet, composed of various ministers acting as the king's advisers, and administering particular offices or departments of the government, must act as a body and must resign when they no longer have the support of Parliament. Such a prac- tice is not prescribed by any statute, nor would any court at- tempt to enforce it as a part of the unwritten law. But it is fully recognized as one of the principles in accordance with which the government of Great Britain is conducted. The constitution of Great Britain as a whole is, therefore, unwritten in the sense that it is not reduced to any definite and authoritative statement, although as a whole or in parts it has been expounded and explained by authors who have written on the subject, and who have stated, with more or less fulness and accuracy, its rules and principles. Some im- portant English statutes, besides the Habeas Corpus Act al- ready referred to by way of illustration, are constantly treated as parts of the constitution. The most notable of these is Magna Charta, which received the royal approval of King John in 12 15, and, with slight modifications, was reapproved § s] Written Constitutions. 1 3 by many of his successors. Another is the Petition of Right, which was addressed by Parliament to Charles I. in 1628, and received his approval. And still another is the Bill of Rights, which regulated the descent of the crown, and also declared certain fundamental rights of the people as against the royal power, which was enacted by Parliament in 1689, and received the royal assent. These statutes are in form not different from other statutes which are a part of the written law of England, but the nature of their provisions is such as to properly char- acterize them as important parts of the English constitution, and no attempt is ever made to repeal them. As parts of the written law, such statutes as these are of course binding on the courts. In the United States the constitutions of the various states and of the federal government are formally written and rest upon the will of the people expressed directly, through their chosen representatives, and are regarded, therefore, as having a higher authority than that of statutes enacted by the legisla- tures, created and existing in accordance with the provisions of the constitutions, or of executive acts authorized by the constitutions. These constitutions are not only laws of the states and the federal government respectively, and therefore a part of the written law, but they are superior to the ordinary statutory law. Constitutional law in the United States, there- fore, is concerned with the history and interpretation of cer- tain formal written instruments, and not merely with the exposition of general and unformulated principles of govern- ment. Strictly speaking, constitutional law, as the term is used in this country, takes no account of mere practices and usages, no matter how generally observed, but is based on the language of written constitutions, and takes into account statutes, treaties, executive acts and regulations, and the deci- sions of the courts applying their provisions to specific cases. Although the authority of a state or federal government is to be determined by the provisions of the written state and federal constitutions, and not from any mere general principles or constitutional rules recognized in this country or in Eng- 14 Constitutional Government. [§ s land, nevertheless a written constitution is, like a statute, subject to interpretation, and must be applied to new circum- stances and conditions by determining the true intent and purpose of its provisions. Nowhere is there any authority, however, to add to those provisions or to eliminate any por- tion of them, or to give them a meaning not reasonably within the intent with which they were framed, save by a formal amendment, as authorized in the constitutions them- selves. Some text writers and a few judges have assumed that there is back of the written constitution a general un- written constitution, somewhat analogous to that of Great Britain, serving as a limitation on the exercise of the powers of government as defined by the written instruments. This position is untenable and dangerous. If the written constitu- tions do not express the will of the sovereign people with reference to the distribution and limitations of the powers of government, but such will is to be ascertained from other sources, then we are practically in the same condition as the people of Great Britain and have no authoritative constitution. Furthermore, it is a fundamental principle of our constitutions that they have a higher authority than the corresponding general principles of the British constitution. Any act of the British Parliament supersedes previously existing rules and usages, however long established ; while our constitutional provisions are effective as a definition of and limitation upon the powers of each branch of government, so that acts of any branch in excess of the power given to or in violation of limi- tations imposed upon it are invalid and of no force. To give to general principles and rules not found in a written con- stitution the force and effect of nullifying any action of a branch of the government which is not contrary to the written terms of the constitution, would be to assume that elsewhere than in the constitution-making power there is a power to limit and define the authority of branches of government created under the constitution. But no such authority can be found anywhere in our constitutional system. On examina- tion it will be seen that what have been referred to as rules § 5] Written Constitutions. 15 and principles of an underlying unwritten constitution are either on the one hand clearly implied in the provisions of the written constitutions themselves and therefore a part of them, as binding and effectual as though written in words ; or on the other hand are mere general and well-recognized usages such as are said to be constitutional under a govern- ment like that of Great Britain, having no written and authori- tative constitution, but which should not, where there is an authoritative constitution, as with us, be deemed any part of constitutional law. Examples of such usages which have been so fully recog- nized that they might, if we had no written constitution, be said to be a part of the unwritten constitution, are the follow- ing : That no president shall be elected for more than two successive terms ; and that the presidential electors shall vote for the candidate of the party on whose ticket they are selected. But it is evident that these so-called rules are not a part of our constitutional law. The limitation of the presi- dency to two terms for any one person furnishes a strong argument against the nomination or election of a president for a third term, an argument which has heretofore, as in the case of President Grant, been sufficiently potent to prevent renomination for a. third term. But no one would pretend that, if such limitation were ignored and a president nominated and elected for a third term, he would not be lawfully presi- dent of the United States and have all the authority of president. No congress or court would venture to say that his election was for that reason not valid. Likewise there have been emergencies, such as the death before nomination of a candidate for president, which made it absolutely neces- sary for the electors chosen on a national party ticket to cast their votes for some one not nominated on such ticket, as in 1872, when Horace Greeley, the regular nominee of the Democratic party, died before the electoral vote was cast, and the electors in states in which the democratic ticket had a majority of the votes were compelled to. exercise a discretion as to the candidate for whom their choice should be ex- 1 6 Constitutional Government. [§ 6 pressed. It could not have been contended for a moment that votes thus cast should not be counted for the person designated, although he was not the nominee of the party. Any such general rules and principles, therefore, though they may be said in some sense to be a part of the unwritten con- stitution under our form of government, are not of equal authority with the provisions of our written constitutions and are not in a legal sense limitations on the powers of govern- ment. They are analogous to those portions of the un- written constitution of Great Britain which are of no binding and legal effect, although representing the general customs and usages in accordance with which that government is administered. In Great Britain no acts of Parhament regularly adopted can be said to be unconstitutional in the sense of being in- valid and without legal effect. It may be urged as against a proposed act of Parliament that it will be unconstitutional because in violation of the general principles and usages recognized by the unwritten constitution. But when adopted the statute in practical effect modifies the constitution, and is fully operative and potent. In this country, however, a statute which is in violation of the constitution is wholly invalid and impotent, and the constitution remains unaffected. 6. Government under a Written Constitution ; XJltimate Sovereignty. The difference between the governmental system of the United States and that of Great Britain, from a constitutional point of view, is not, however, merely that the principles of constitutional law are in the one case formally reduced to writing, while in the other they are recognized without being authoritatively reduced to definite statement. In Great Britain the ultimate sovereign power rests in the government and is exercised by Parliament, and no superior constitutional authority is recognized ; while in the United States there is no unlimited sovereign power in either the federal or state governments or in any of the branches thereof, and ultimate § 6] Ultimate Sovereignty. 17 sovereignty, if it is to be conceived as existing anywhere, rests with the people as a whole. The powers of government in the United States are derived by delegation in the terms of the federal and state constitutions from the people by whom such constitutions have been adopted ; and no department of government can lawfully exceed the authority given to it by general or specific grant in the constitution under which it exists, nor can it transcend the limitations imposed upon it by such constitution. The real distinction, then, consists in the fact that the government of Great Britain is regarded as possessing sovereign power, while the federal and state gov- ernments of the United States possess only such powers as are generally or specifically delegated to them. Since sovereignty in the United States does not rest in the government or any division of it, it may be interesting to in- quire where it does reside, (i) The state and federal con- stitutions are supposed to emanate from the body of the people ; but in fact the state constitutions have been adopted in most instances by popular vote, the assent of the ' body of the people being expressed by the qualified electors ; that is, the approval of a majority of those voting, out of the one-fifth of the population which is entitled to vote, is the highest formal approval obtainable for them from the body of the people, in which ultimate sovereignty may be supposed to rest ; while the federal constitution was adopted by conventions in the different states at that time composing the Union, such conventions being made up of delegates selected by the electors and acting under authority derived from them. It can hardly be said, therefore, that in any practical sense ulti- mate sovereignty as indicating an efficient power resides in the body of the people, for such body does not in any sense or under any circumstances act in its sovereign capacity. (2) It cannot be said that sovereignty resides in the voters, for, as they are determined and their action is regulated by the constitutions and the statutes, they can do nothing except as authorized by such constitutions. The body of the voters like the officers whom they select exercise only a delegated 1 8 Constitutional Government. [§ 7 authority. (3) It therefore appears that although sovereignty, in the highest sense of the terra, does not reside elsewhere than in the body of the people, no constitutional method is provided by which this body as distinct from the voters and the officers selected by them, can express its will. (4) Ulti- mate sovereignty, the terra which is used as indicating ul- timate power, may well be said, however, to reside in the body of the people, for by the exercise of the power of revolu- tion any government which does not correspond to its ultimate will can be overthrown. An important object to be attained by constitutional government is to enable the people as a whole eventually to secure such action as is deemed desirable in accordance with the orderly and well-recognized methods of procedure prescribed in definite form, so that the assertion of the power of revolution, which must necessarily in itself be irregular and unregulated, shall not be necessary. In this country ultimate sovereignty is a purely abstract term. It cannot be actually exercised in accordance with any method recognized by the constitutions or the laws of the state or federal government, but in a sense it is proper to say that federal and state governments exercise delegated sovereign power while acting in accordance with and under the limitations of the constitutions in accordance with which they are organized and exist. Ttiey cannot, however, be said to be sovereign in the full sense of the term, for the reason that sovereign power cannot in its nature be Hmited ; while all the powers of both federal and state governments are in fact restricted by their respective constitutions. 7. Unconstitutionality of Legislative or Executive Acts. Perhaps the most marked distinction between the govern- mental system of Great Britain and that of the United States, is that in Great Britain the courts cannot question the validity of an act of Parliament regularly passed on the ground that it is in violation of the constitution, while in the United States such power is regularly and frequently exercised by the courts § 7] Unconstitutionality of Acts. 1 9 with reference to state or federal statutes. The reasoning on which this exercise of power by the courts in the United States is based is the following : The law-making power of the federal or of a state government exercises only delegated authority, and it cannot transcend constitutional limitations imposed upon it ; and therefore its acts, when without authority or in viola- tion of constitutional limitation, are invahd. If such a statute were to be regarded by the courts as a part of the law, bind- ing upon them, then constitutional limitations, transgressed by such a statute, would be of no validity whatever. Consequently when in any case before a court it becomes necessary to deter- mine what the law is, and a statute is relied upon as being an authoritative statement of the law, the court must decide whether or not the statute is valid. This reasoning applies with equal force to any action of the executive department which is without authority or in violation of constitutional restrictions. This peculiar characteristic of our form of gov- ernment, which results in giving to the courts a much more important function than any exercised by the courts in other countries, results, then (i) from the conception of ultimate sovereignty as residing in the people and not in the govern- ment; (2) from the conception of the government as exercis- ing only delegated and limited powers; and (3) from the division of the powers of government among three separate departments, each of which has authority only so far as the powers of government provided for in the constitution are conferred upon it. The courts are required under our form of government to exercise such power in order to arrive at a proper basis for deciding cases before them. It is to be observed that this function of the courts is not the primary or the principal purpose of their creation and recognition as a department of government. Courts are created primarily to decide legal controversies ; but in deciding such controversies it is necessary for them to determine what is the law as applicable to the particular case, and as incidental to the exercise of this function they may have to decide whether a statute or an executive act relied upon by one party or the 20 Constitutional Government. [§ 7 other is valid, or whether, on the other hand, it is invaUd be- cause in excess of the power conferred upon the department which has attempted to act, or is in violation of some con- stitutional provision or limitation. It is a function of the law- making power to determine prospectively what shall be. the law, and to express that determination by adding to or modify- ing or repealing the existing law by statutes taking effect from the time of their enactment. (As to ex post facto and other retrospective laws, see below, §§ 59, 272.) The courts, on the other hand, decide cases submitted to them with reference to what the law was at the time the controversies to be deter- mined arose, by which the rights of parties to such contro- versies are to be adjudged. Their principal concern is as to what is, or rather what has been, the law up to the time of the decision, not what shall be the law for future cases. It is true that, having decided what the law is, the court will be likely in future cases to adhere to the views expressed in previous decisions, and the desirability of having the rules of law on which persons may act and rely stable and settled will incline the courts to adhere to their former decisions, which will be regarded as precedents in subsequent cases. But the act of the court in determining what the law is in a given case is not primarily for the purpose of ascertaining it for future cases, but in order that the case before it may be rightly decided. It is erroneous, therefore, to speak generally of the judicial department as having power to interpret or declare the law as though it were especially created for the purpose of inter- preting the constitution and the acts of the other departments of the government in order that the people shall be advised as to what they mean. It is assumed rather that the constitution and the law, both written and unwritten, are known, and that persons whose controversies come before the courts have acted with reference to the law as it existed and are bound to knowledge thereof; and the courts, therefore, on that basis determine only retrospectively what law appHes in the settle- ment of controversies which have already arisen. Nevertheless, as a result of such determination, persons may in the future §7] Unconstitutionality of Acts. 21 be guided and greatly assisted in following the law, by having reference to what has already been decided in previous cases. The preceding considerations lead to some other important conclusions as to the proper province of the courts, in passing upon the constitutionahty of statutes. First, it will always be borne in mind by a court that the legislative department, on whose authority the statute rests, is a co-ordinate branch with the judicial ; that there is no superiority as between them ; that each is vested with power and discretion within the scope prescribed for it by the constitution; and therefore that an act of the legislative department is entitled to every presump- tion of correctness, and that to question its validity is the exercise of a very delicate and extraordinary power, to be resorted to only in the last extremity and when the rights of the parties to the litigation are found necessarily to depend upon its construction. The courts then, instead of being zealous to interpret and determine the validity of statutes with respect to their constitutionality, in order that the people may know and act accordingly, will discharge such duty with great reluctance and reserve, the importance of making the law clear for future cases being subordinate to that of leaving the legis- lative department free in the exercise of its constitutional pre- rogative of law making. Moreover, the courts will entertain every presumption in favor of the validity of a statute called in question, and declare it to be invalid on constitutional grounds only where it is plainly and clearly in conflict with the constitution. They will not pass upon such a question save in a case in which it is necessary to do so in order to adjudicate the real and substantial rights of the parties in that case ; and they will avoid, if practicable, considering such a question except after full argument and a consultation in which all the judges of the court are present. Second, a court will avoid, if possible, setting up its own judgment as against the judgment of a co-ordinate branch of the government as to matters which are by the constitution entrusted to the discretion of such co-ordinate branch. The diplomatic relations between this and foreign countries being 2 2 Constitutional Government. [§ 7 exclusively within the control of the executive department, the determination by that department as to whether territory has been acquired from a foreign state so as to become a part of the United States will be conclusive on the courts, and they will not undertake to review the correctness or propriety of the determination. The legislative department having been vested with authority to levy taxes, the propriety of any par- ticular tax as to its subject, amount, or the method of its col- lection, will not be questioned by the judiciary; but on the other hand, as private property rights are involved in the exaction of a tax, the courts will determine whether such exaction is within the scope of the taxing power, and whether the property is properly subject to taxation ; and if a particular method of apportionment is directed by the constitution, the courts will say whether that method has been followed. Fur- thermore, as the two houses of Congress are made judges of the election and qualification of their respective members, and are authorized to prescribe their rules and procedure, and punish their members for disorderly behavior by expulsion, no court will attempt to review or revise the action of either house in this respect, even though the question to be deter- mined may in its nature be judicial. For instance, if a member should be expelled, no court could pass on the question whether the expelled member was guilty of the acts charged as a ground of expulsion. In other words, while the constitution is binding upon all branches of the government, the question whether it has been violated by the executive or legislative branch cannot be inquired into by the courts, except in a case of judicial cog- nizance, that is, a case coming within the jurisdiction which has been given to the courts by the constitution and the laws. It is to be assumed that the executive and legislative depart- ments are as zealous in abiding by the constitution as are the courts, and that the requirements and limitations of the con- stitution will be carefully observed ; and only when in the exercise of judicial power it becomes necessary to determine whether an executive or legislative act is valid will the courts §7] Unconstitutionality of Acts. 23 enter into a consideration of the question whether the power granted in the constitution or the limitations imposed by it have been exceeded or infringed. Many questions of con- stitutional law, in the broad and proper sense of the term, can never come before the courts for final determination ; because the action of the executive and legislative departments with reference thereto must, so far as any legal remedy is concerned, be conclusively presumed to be in accordance with the con- stitution. It is true that in Massachusetts and a few other states the constitution authorizes the judicial department to give advisory opinions to the legislative and executive depart- ments on application, but advisory opinions thus given have not the force of decisions and are not regarded as within the scope of Judicial power (^Opinion of the Justices.^ The fact that the judicial department is limited to the deter- mination of controversies properly arising in cases brought into the courts for adjudication, is to be carefully borne in mind in correctly understanding the result of a decision rendered by a court. Such a decision is conclusive as to the rights of the parties before the court, and also serves as a precedent which will have more or less weight in the determination of subsequent cases involving the same question. But the courts cannot repeal or annul a statute, nor dictate to the executive in any compulsory way what his action shall be. The effect of declaring, in a particular case, that a statute is unconstitu- tional is not to repeal the statute, but to determine in the case before the court that it will not be recognized as valid, and to furnish a precedent or authority for contending in similar cases where such a statute is brought in question, that it should not be recognized. The statute remains, nevertheless, on the statute books as an act of the legislative department, even though for the purpose for which it has been relied upon the court may have decided that it is not a part of the law of the land. The decision of the court is not that the statute shall thereafter be of no force and effect, but that it has never been a valid statute. While it may be proper that other depart- ments of the government shall yield great deference to the 24 Constitutional Government. [§ 7 conclusions of the court on such a question, there is no method of compelling them to do so, and they must still be allowed to exercise their own discretion in such matter, sub- ject only to the presumption that if another case is presented to the judiciary department, involving the same question, the courts will adhere to the former decision. Although the power of the courts to declare legislative acts unconstitutional has been firmly established for more than a century and has been acted upon in numberless cases in every state of the Union, as well as in the Supreme Court of the United States, there is still a popular tendency to call in ques- tion the propriety of its exercise, especially when the decision seems to run counter to public opinion in favor of the legisla- tion which is thus annulled ; hence, a further discussion of the development of the doctrine may be interesting. In some early cases in the English courts it was suggested rather than decided that an act of Parliament might be so unreasonable and unjust that the courts would refuse to enforce it. But these suggestions were not followed by the English courts to the extent of establishing any rule by which they would be authorized to question the validity of an act of Parliament on such ground. On the other hand, it has become firmly established as a principle of the constitutional law of Great Britain that the courts cannot exercise that power. The courts of Great Britain did, however, exercise the power of declaring invalid acts of colonial legislative bodies, on the ground that they were in excess of the power conferred by their colonial charters, and out of this exercise of power no doubt arose the notion that the acts of legislative bodies hav- ing a delegated and limited authority could be held to be invalid in the courts. Before the adoption of the federal con- stitution such authority had been exercised in a few cases by the courts in some of the states. But in the case of Mar- bury v. Madison, in the Supreme Court of the United States (1803), Chief Justice Marshall delivered an opinion on the question which has since been almost uniformly followed in judicial decisions in the federal and state courts, and which §7] Unconstitutionality of Acts. 25 practically has set it at rest. The point decided in that case was that an act of Congress by which it was attempted to give jurisdiction to the Supreme Court of the United States over a class of cases not placed within its jurisdiction by the language of the constitution, was invalid. The reasoning sustains fully the authority of a court to inquire into the question whether a legislative act is within the scope of the power conferred upon the legislature or in violation of restrictions imposed upon it, and to declare such act invalid and inoperative if it be found to be in excess of the power granted or in violation of the limitations imposed. The soundness of this decision was not, however, at once universally recognized as applied to the state courts ; and in at least one state an attempt was made to im- peach judges for declaring legislative acts to be unconstitu- tional. But the reasoning of Chief Justice Marshall, based on the nature of our federal and state governments as exercising a delegated authority under their respective constitutions, and the practical necessity of some determination by a duly con- stituted authority of the scope of governmental power, have led to the universal acceptance by the- courts of this country of his conclusions, and a popular acquiescence in them as em- bodying a sound exposition of a fundamental principle of our constitutional law. CHAPTER II. ADOPTION AND AMENDMENT OF CONSTITUTIONS. 8. References. J. Story, Constitution, §§ 198-271, 1826-1831 ; T. M. Cooley, Constitu- tional Limitations, ch. iii ; G. T. Curtis, Constitutional History, chs. i-xv ; H. Von Hoist, Constitutional History of the United States, ch. i ; J. A. Jameson, Constitutional Conventions ; J. I. C. Hare, Constitutional Law, chs. iv-vii ; J. N. Pomeroy, Constitutional Law, ch. ii ; J. P'iske, Critical Period ; A- B. Hart, Actual Government (Am. Citizen Series), ch. iii ; James Bryce, American Commonwealth, chs. i-iv ; The Federalist, Nos. 21, 22 ; J. J. Lalor, Cyclopedia, Arts. " Amendment " and " Conven- tion " ; T. M. Cooley, Principles of Constitutional Law, ch. i ; H. C. Black, Constitutional Law, §§ 22, 28, 29; McCulloch v. Maryland (1819, 4 Wheaton, 316 ; 4 Curtis' Decisions, 415 ; Thayer's Cases, 271 ; McClain's Cases, i; Marshall's Decisions, Dillon's ed., 257); Martin v. Hunter's Lessee (1816, i Wheaton, 304; 3 Curtis' Decisions, 652; Thayer's Cases, 123 ; McClain's Cases, 746) ; Luther v. Borden (1848, 7 Howard, i ; McClain's Cases, 595) ; Koehler v. Hill (1883, 60 Iowa, 543 ; Thayer's Cases, 252) ; ilfflj;i«<'//v.Z'OT«/ (1900, 176U. S. 581) ; Dorr ^ . United States (1904, 24 Sup. Court Reporter, 809). 9. Colonial Charters; Transition to State Governments. The governments of the colonies, as provided for in their charters, or instructions to governors, or frames of govern- ment proceeding from a proprietor or from the royal gov- ernment, combined some elements of royal authority with other elements of popular government. The governor was gene- rally an appointive officer, selected either directly by the king, or indirectly, under his authority, by the proprietor or cor- poration to whom the colonial grant was made. There was usually a provision for a legislative body of two branches, the lower branch, at least, chosen by some form of suffrage. In the exercise of the powers of government, serious conflicts 26 § lo] From Colony to State. 27 arose in several of the colonies between the representative of the royal power on the one hand, and the representatives of the people on the other, and it was quite as much the result of these local conflicts as it was of the agitation in the colonies for a greater measure of local self-government, which led to the widespread discussion of the proper sphere and functions of government. The change from the charter or proprietary or royal govern- ment to a state government, which took place in each colony in some form in accordance with the action of the representatives of the colonies assembled in the general Congress at Philadel- phia, in 1 775, was a revolutionary change ; that is, it was not in accordance with any prescribed constitutional form ; as there could not be, of course, any power in the colonial governments to disavow the authority on which such governments rested. This change was effected in definite form in most of the colo- nies by the adoption of a constitution, and these first consti- tutions, in several instances, consisted of three parts: (i) a preamble, declaring the purpose for which the constitution was adopted ; (2) a bill of rights, or declaration of rights, containing an exposition of the nature and powers of govern- ment and limitations on the powers of the government created under the constitution; (3) a description of the framework of the new government not very different from the former colonial organization. The preamble was omitted in later state constitutions, but the bill of rights has been preserved as an important feature in most, if not all, of the state constitu- tions which have been adopted down to the present time. 10. Authority on which State Constitutions Rest. The first state constitutions adopted in the respective colonies being revolutionary in their character had no basis of legal authority, and rested on the general consent of the people evidenced by their acquiescence in the authority of the govern- ments established under such constitutions. Those adopted prior to 1 780 were not submitted to popular vote, but went into effect on the authority of the legislative bodies existing in 2 8 Adoption of Constitutions. [§ lo the colonies, and assuming the revolutionary prerogative of declaring independence and establishing a state government. Many of those subsequently adopted went into effect in accord- ance with provisions found therein for their submission to and adoption by vote of the electors in the respective states. Provision is usually made in state constitutions for their amendment and for the substitution of another constitution in due and legal form, and any changes thus made are not in their nature revolutionary so far as the prescribed methods of alteration or substitution are pursued. Whether such amend- ment or substitution is effected by legislative action in the submission of amendments or new constitutions, to be adopted by popular vote, or by the action of constitutional conventions proposing amendments or new constitutions to go into effect on adoption by popular vote, the ultimate authority of constitu- tional provisions is now assumed to rest on the action of the people exercising sovereign power. (See above § 6.) Never- theless it is evident that even in this exercise of power the people do not act as a whole, but through their representa- tives in the legislature or the constitutional convention, and the voters who exercise the power delegated to them of thus acting, so that even the power of constitution making is dis- charged in the exercise of a delegated rather tVian an original sovereign authority ; and unless the provisions for amendment or substitution are complied with, the new constitution will be revolutionary in its nature, that is, resting on general assent . and not on legal authority. But even though revolutionary, such an amended or substituted constitution will be valid and binding so far as the acts of any department of government authorized by it are exercised under its authority. If, however, the question arises whether an amendment or a new con- stitution has been lawfully adopted, and that question is to be determined under the authority of the pre-existing constitution, then, unless the proper steps have been taken, the amendment or the new constitution cannot be recognized by the govern- ment existing under the previous constitution. {Koehler v. Hill?) § II] Authority. — Independence. 29 11. Independence of the States. The state constitutions adopted in the colonies did not in general make any provision for union under a federal government. In legal effect each colony, when its relations with the parent government were severed, became an inde- pendent state, and for the time being a sovereign state ; and the earliest attempts at any concerted action among the states were based on the mutual consent to the exercise by a body of delegates appointed from the different states of authority to act for the states in matters of common interest. The Con- tinental Congress, which adopted the Declaration of Inde- pendence, and under whose authority the War of Independence was inaugurated and carried on, was made up of delegates chosen by the state legislatures, and was therefore a body without power to control the action of the states, except so far as they saw fit to abide by and conform to its recommen- dations. It was practically an advisory body. As a matter of fact, however, the states, although theoreti- cally independent, and each in itself a complete sovereign, did not attempt to exercise all the powers of independent sovereignties. No one of them made war on its own account, sent ambassadors to any foreign government, or received repre- sentatives of such government. Nor did they have with one another the relations which usually exist among states inde- pendent of and foreign to each other. While it is true that the states are still regarded in law as foreign to each other, so far as their jurisdictions, laws, and affairs are concerned (see below, § 188), they do not occupy towards one another, nor towards foreign nations, the relations of sovereign and inde- pendent states. Their relations towards each other are not determined by the fact that their people are bound together under a common federal government; but during the transi- tion period from independence to the estabhshment of the federal government they were in the anomalous position of theoretically possessing, but not practically exercising, all the powers of independent sovereignty. 30 Adoption of Constitutions. [§ 12 12. Union of the States under the Articles of Confederation. The first suggestion in the Continental Congress for the formation of the federal government was made by Franklin in 1775; '^he first official draft of a plan for the confederation was submitted by that Congress to the thirteen states for rati- fication in 1777, under the title, "Articles of Confederation and Perpetual Union." The plan was to go into effect when the articles were adopted by the legislatures of each of the thirteen states, but this was not accomplished until March, 1 78 1. The federal government provided for by these articles consisted only of a legislative department ; there was no pro- vision for a permanent executive nor permanent federal courts. It was expressly provided that " each state retains its sover- eignty, freedom, and independence, and every power, juris- diction, and right which is not by this Confederation expressly delegated to the United States in Congress assembled." The government thus provided for was a league or confederation for common defence, and the Congress was to consist of dele- gates without limit as to number, chosen and paid by the legislatures of the different states, those from each state acting as a unit. It was provided, however, that the states should not individually enter into relations with foreign nations, nor with each other, by way of common treaty or compact, nor engage in any war, without the consent of the Congress of the confederation, which should have the exclusive right and power of determining on peace and war and carrying on foreign relations. Congress was authorized to borrow money and sup- port an army and navy, and for the purpose of raising the necessary funds was to receive contributions from the several states in proportion to the value of land. But no means was provided for collecting taxes directly from the people, nor for enforcing payment of the contributions asked from the different states. The government thus provided for had not sufficient author- ity to secure respect abroad nor to discharge at home the §12] Confederation. 31 duties essential to the maintenance of peace and the public credit ; and it was found impossible to enforce even those limited regulations which Congress was authorized to make. The most serious difficulty, however, and the one appealing most strongly to the people, was the lack of any uniform regu- lations with reference to commerce among the states or with foreign nations. Each state imposed its own restrictions on the bringing of goods from other states or from abroad, and upon the shipment of goods out of the state. Of scarcely less importance was the want of any common and stable currency with which business among the people of the different states might be carried on ; for while, under the provisions of the Articles, Congress had "the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority or by that of the respective states," no uniform system of currency was actually adopted and put into operation. The weakness of this government, and its defects, which became more and more evident as it attempted to exercise the limited powers entrusted to it, led to agitation for amend- ments of the Articles; and in 1787 a call was issued by Congress, recommending the different states to send delegates to a convention for the purpose of revising the Articles of Confederation and reporting such alterations as they should deem necessary " to the exigencies of the government and the preservation of the nation." But the convention of delegates which sat in Philadelphia in pursuance of this call from May to September, 1787, found it to be impracticable to propose amendments to the Articles which should remedy the defects and give to the federal government sufficient power ; and the convention therefore proceeded to formulate an entirely new federal constitution, providing for a central government radi- cally different from that contemplated in the Articles. This new constitution was to go into effect when ratified by nine states (Const. Art. VII) . It was submitted to the people of the states in 1787, and was ratified by eleven of them before any definite action was taken under it. The constitution 32 Adoption of Constitutions. [§13 which was thus proposed and ratified, and which is the present constitution of the United States, went into actual effect as an instrument of government in 1789. In April of that year the Congress, chosen in accordance with the new constitution, met and counted the electoral votes for president, and on April 30th George Washington was inaugurated as the first President of the United States ; and a few months later the remaining two states ratified the constitution. 13. Adoption of the Federal Constitution. In the new constitution, framed by the delegates from the different states, referred to in the preceding paragraph, it was provided that the ratification thereof by conventions of nine of the thirteen states should be sufficient to authorize it to go into effect as among the states in which it was so adopted. As the Articles of Confederation provided only for their amendment by unanimous consent of the thirteen states, it is apparent that the new constitution was to this extent a revolu- tionary measure, not authorized by the Articles of Confedera- tion. As a matter of fact one state — Rhode Island — sent no delegates to this convention, and was therefore in no way bound by its proceedings ; and neither Rhode Island nor North CaroHna ratified until after the federal government authorized by the constitution was actually in operation. Moreover, the Articles of Confederation provided for their change or amendment by the action of the states, — meaning the state legislatures, — whereas the constitution was by action of Congress submitted for ratification in the different states by conventions chosen by the voters, as the legislatures of the different states might provide (Const. Art. VII). The federal government under the constitution was not, therefore, the legal successor to the government under the Articles of Con- federation, but supplanted it. So far, however, as the new government was recognized by the states, eleven of whom had ratified before such government was organized, it was as to them legitimate and regular, and it was acquiesced in by the § 13] Federal Constitution. 33 remaining two states when they finally ratified it in the pre- scribed form. It is apparent from what has been said as to the method of adopting the federal constitution that it was not a league or a compact among several independent sovereign states, but, on the contrary, a government resting for its authority on the assent of the people of the different states expressed by ratifi- cation in conventions of delegates selected by the people. It differed from the government under the Articles of Confedera- tion, therefore, primarily in the source of its authority, and secondarily in the nature of the government authorized, as in- dicated by the powers delegated to it. This difference is well expressed in the preamble, which is in the following words : " We, the people of the United States, in order to form a more perfect union, estabUsh justice, insure domestic tranquiUity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our poster- ity, do ordain and estabhsh this constitution for the United States of America." Although the people acted in the different states separately, there is no reason now to question the general proposition that the federal government rests on the authority of the people as a whole, and not on the authority of the states indi- vidually. As to the form of government provided, it is signi- ficant that its powers are to be exercised with reference to its citizens as individuals, rather than with reference to the states as communities. The revenues of the government are to be raised by taxes on persons and property, not by contributions from the states ; the salaries of senators and representatives are to be paid by the United States, and not by the states from which they are chosen ; and in general the powers of the government are to be exercised by the making of laws, the enforcement of which is entrusted to a president and a judicial department. 34 Adoption of Constitutions. [5 h 14. Methods of Constitutional Amendment. Written constitutions usually contain prodsious for their own amendment. In the federal constitution it is provided (Art. V) that amendments shall be proposed by Congress, two-tliirds of each house concurring, which shall become effective as parts of the constitution when ratified by the legislatures of, or by constitutional conventions in, three- fourths of the several states ; or, on the application of the legislatures of two-thirds of the several states. Congress is directed to call a convention for proposing amendments to the constitution, which amendments shall go into effect when approved by conventions in three- fourths of the states ; but no state without its consent can be deprived of its equal representation in the Senate. All the amendments to the federal constitution thus far made have been proposed by Congress and ratified by the legislatures of the requisite number of states, the result of the action of the states being declared by the executive department. The methods provided for amendment of state constitutions are by no means uniform. In some states amendment by the legislature has been recognized, but the usual method is for the legislature to submit the proposed amendment to the qualified electors for approval. \\'hatever the method pro- vided, it must be strictly followed, and no amendment not proposed and adopted in the method prescribed becomes a part of the constitution ; and it is for the courts to determine, when such a question is properly brought before them, whether the amendment has been legally adopted. No matter bow general may have been tlie popular appro\'al of a proposed amendment, if the required steps have not been taken, it does not become a part of the constitution. While a constitution may become effective by general acquiescence, a government provided for by such a constitution, not adopted in accordance with previously prescribed methods, is in its origin re\olution- ary and not regular, and a constitution which has gone into effect as the fundamental law can be regularlv changed only in accordance with its provisions. A state cannot by constitu- § <(1 Methods oi" A luciidnKMU. 35 tionnl anvciulmont viol.ito llio inovisKms of tho U-iioial consti- tulion. hO far as tl>ov imiHiso restrictions on tho i-xoivisc ot" stato power, anv nion- than it can do so by statute. Nor can it by an\cnih\\cnl prviviilc lor any oilier than a reinibhcan t'onn ol' j^overnnient, tor tiie I'nited States is bonnd to guarantee that tonu ol' iiOveruinolU to every state in ll>c miion (I'onst. Art. tV. § 4). CHAPTER III. NATURE OF THE FEDERAL AND STATE GOVERNMENTS; THEIR RELATIONS. 15. References. Nature Of State and Federal Governments : A. B. Hart, Actual Government (Am. Citizen Series), ch. vi; T. M. Cooley, Constitutional Limitations, ch. viii ; J. Kent, Commentaries on American Law, Lee. xviii ; J. I. C. Hare, Constitutional Law, Lees, vi, vii; H. C. Black, Constitu- tional Law, cti. ii ; J. N. Ponieroy, Constitutional Law, §§ 85-120; J. Bryce, American Commonwealth, I, ciis. iv, xxvii, xxviii, xxxvi, xxxvii ; J. F. Jameson, Essays in Constitutional History: J. Wilson, Lectures on Jurisprudence (Andrew's ed.), I, ch. xi; II, ch. i; I^ane v. Oregon (1868, 7 Wall. 71 ; McClain's Cases, 40). Rule of Construction ; Liberal Interpretation ; Implied Powers : J. Story, Constitution, §§ 397-456 ; J. Kent, Com?nentaries, I, ** 243-254; McCulloch V. Maryland {\%ic), 4 Wheaton, 316; 4 Curtis' De- cisions, 415 ; Thayer's Cases, 271 ; McClain's Cases, i). Supremacy of the Federal Government : J. Story, Constitution, §§ 373-396; Martin v. Hunter's Lessee (1816, I Wheaton, 304; 3 Curtis, Decisions, 562; Thayer's Cases, 123; McClain's Cases, 746); Tarble's Case (1871, 13 Wallace, 397; Thayer's Cases, 2298; McClain's Cases, 43); Tennessee v. Davis (1879, i°° U' S. 257; Thayer's Cases, 316; McClain's Cases, 51) ; Ex parte Siebold (1879, 100 U. S. 371 ; McClain's Cases, 56 ; Thayei-'s Cases, 326) ; In re N'agle (1889, 135 U. S. i ; McClain's Cases, 65; Thayer's Cases, 335); Ln re Debs (1895, 'S^ U- S. 564); Hauenstein v. Lynham (1879, i°° U- S. 483; McClain's Cases, 72); Davis V. Elmira Savings Bank (1895, i^' U. S. 275; McClain's Cases, 76). Limitations in the Federal Constitution : J. I. C. Hare, Consti- tutional Law, Lect. xxiv ; J. R. Tucker, Constitution, ch. xiv ; H. C. Black, Constitutional Lazv, ch. iii ; The Federalist, Nos. 83, 84 ; H. V. Ames Amendments to the Constitution ; E. McClain, Federal Protection against State Power (Harv. L.aw Rev. VI, 405); Barron v. Baltimore (1833, 7 Peters, 243; 10 Curtis' Decisions, 464 ; McClain's Cases, 14; "Thayer's Cases, 449) ; Maxwell v. Dow (1900, 176 U. S. 581) ; Territory of Hawaii V. Mankichi (1903, 190 U. S. 197 ; 23 Sup. Court Reporter, 787); Dorr V. United States (1904, 24 Sup. Court Reporter, 808) ; Slaughter- House 36 § 1 6] Division of Powers. 37 Cases (1872, 16 Wallace, 36; McClain's Cases, 18; Thayer's Cases, 516) ; United States v. Cruikshank (1875, 92 U. S. 542 ; McClain's Cases, 31) ; Ciml Rights Cs^j (1883, 109 U. S. 3 ; Thayer's Cases, 554; McClain's Cases, 37) ; Hurtado v. California (1884, iio U. S. 516 ; McClain's Cases, 905; Thayer's Cases, 616). 16. Division of Powers. The first state constitutions were adopted at a time when there was no established federal government, so that all the powers of government, so far as their exercise was in any way provided for, were distributed among the three departments of the state governments, and this form of constitution has been substantially followed to the present time in the amendment of former constitutions or the making of new ones. But when the people, through their proper representatives, adopted the federal constitution, they thereby restricted the authority of the state government, so flir as powers which had theretofore existed in the state governments were conferred upon the federal government. The power of any branch of a state government consists, therefore, of the general power conferred upon that department by the state constitution, subject to the limitations found in the state constitution itself; and subject also to the implied limitation arising out of the creation and existence of a federal government with the powers delegated to it. But on the other hand the state government does not derive its au- thority in any way from the federal government, nor are the departments of the state government in any way divisions or subordinate agencies of the corresponding departments of the federal government. The two governments rest upon the same general authority. There is a division of powers of government, therefore, between the state and federal governments, which division was effectuated by the adoption of the federal consti- tution, creating a national government which should exercise the authority conferred upon it by that instrument. We have then in the United States a curious and original example of divided sovereignty, which results in many theoretical and some practical difficulties in the determination of the respective powers of the state and federal governments. Any apparent 38 Relations of Governments. [§ 16 conflict in authority, however, is to be settled by consideration of the fact that the adoption of the federal constitution amounted in itself to a restriction of state authority; hence there can be no inconsistency between the exercise of power by the state governments and a like exercise of power by the federal government under the provisions of the federal consti- tution. Practically, it is to be noticed that the powers given to the federal government are in general only those essential to the existence of such a government and the discharge of functions involving a union of the states and the common interests of the people of the different states ; while to the state governments is left such authority as is necessary to the protection of the people of the different states in their personal liberty, their property, and their general welfare. The relation of persons to each other under the law with reference to their personal and property rights, except so far as the federal constitution contains specific provisions on the subject, is within the jurisdiction of the states. That great body of the law which affects ownership, possession, conveyance, and distribution of property, which determines the status and privileges of those who are subject to the law, and which protects personal and property rights of one person from infringement by another, is the law of the state, and in this sense it has been said that there is no common law of the United States, but that the common law, that is, the unwritten general law which the courts recognize and apply in the absence of any statutory pro- visions, is deemed to be the law of each state, resting on its general authority, and not on the authority of the United States. General powers of government, involving the protection of per- sonal and property rights, remain in the state, except in so far as by the provisions of the federal constitution they are con- ferred upon the federal government. Thus the so-called police power, that is, the power to regulate the conduct of persons and the control and management of property, with the general object of securing to each protection against unlawful interfer- ence by another, and to protect the public as a whole against injury from unlawful action of its members, is in the state. (See §17] Rule of Construction. 39 below, § 49.) It is for the state government to regulate the conduct of persons and the control of property so as to prevent injury to the public or to others. As a branch of this general police power, the punishment of crimes is left to the states, except in so far as under express or implied authority, found in the federal constitution, the power to punish particular classes of crimes may have been conferred upon the federal government. (See below, § 52.) On the other hand, the federal government is given author- ity to legislate with reference to taxation for national purposes, the relations of the United States to foreign governments, the making of war and peace, the maintenance of an army and navy, the regulation of foreign and interstate commerce, and the government of territory not included within any state. These powers, and others which are conferred upon the federal government, are such as were deemed necessary by the framers of the constitution in order to enable the federal government to carry out the purposes for which it was formed. However, while these general purposes may be taken into account in construing the powers given to the federal govern- ment by the constitution, it is not left an open question what the powers of that government shall be in order to carry out the general object of its creation ; but the powers granted are limited to those which were deemed to be necessary and proper when the federal constitution was adopted, or which have been given to it by subsequent amendments. 17. Rule of Construction as to Powers Granted by Federal and State Constitutions. It is apparent from what has been said that the general powers of government are vested in the departments of the state government, while the departments of the federal gov- ernment have only such powers as are given to them under the federal constitution. It may therefore properly be said that the state government has all the governmental power not denied to it by the state constitution, so far as not inconsistent with the powers given to the general government by the 40 Relations of Governments. [§17 federal constitution ; while the federal government, on the other hand, is one of enumerated powers. In other words, the state government is a government of general powers, while the powers of the federal government are limited in their scope. It would perhaps be more logical, however, to say that neither state nor federal government has any powers save those granted ; and that the grant of power to the state government is in terms general, while tlie grant to the federal government is in terms specific. For instance, state constitu- tions do not usually in specific terms give to any department of the state government the power to impose taxes ; but the creation of a legislative department under the terras of a state constitution implies the power to impose taxes, subject only to limitations which may be expressed, while, on the other hand, the power to impose taxes for federal purposes is speci- fied in the federal constitution, and does not exist as a gen- eral power, conferred apart from such specification. Another illustration may be found in the power to provide for the punishment of crimes. This power is incident to the general power given to the legislative department of a state govern- ment, and need not be conferred through the state constitution in terms. The legislative department of the federal government, however, has such power only as the result of specific grant, or by way of incident to or implication from other powers which are granted. Thus, the power to punish counterfeiting and to define and punish piracy and felony on the high seas are specifically given to Congress ; but as incidental to the power to legislate with reference to territory ceded by the states to the United States, as provided in the federal consti- tution, for the seat of government, or for forts and arsenals. Congress may provide a complete criminal code ; and it may likewise provide for the punishment of certain crimes as in- cident to the exercise of other powers conferred, such as the power to collect duties on imports, or establish post offices and post roads. (See below, § 52.) Many state constitutions include clauses either expressly reserving to the people the ultimate sovereignty, and all § 1 8] Implied Powers. 41 powers not granted by the constitution to the government, or expressly limiting the departments of government to the exercise of the powers conferred. But as the people cannot exercise under a constitution any powers of government not provided for in the constitution (see above, §§ 4, 6) it is difficult to give any specific effect to such reservations or limitations, save as they may be construed to indicate that unlimited power is not conferred upon any department of government. The provision of the federal constitution (Amend. IX.) that " The enumeration in the constitution, of certain rights, shall not be construed to deny or disparage others retained by the people " is a mere general reservation of the same character as those often found in state constitutions ; but the further provision (Amend. X.) that " The powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people " was evidently intended to emphasize and make plain the general principle that the United States government is one of enum- erated powers. 18. Implied Powers under the Federal Constitution; Liberal Interpretation. Although the federal government is given limited rather than general powers, it cannot be said that it has no powers save those expressed in the federal constitution. In determin- ing the meaning of any written document, whether it be a contract, a statute, or a constitution, it will frequently be necessary to determine the meaning by considering what is implied, as well as what is expressed, in the language used. It is manifestly impossible that every incident and detail shall be set out in specific terms, or that each circumstance caUing for an application of the language used shall have been an- ticipated and provided for ; and it is particularly true of statutes and constitutions that the intent of the law-making or constitution-making body will have to be inferred with refer- ence to matters not specifically covered. The federal govern- 42 Relations of Governments. [§ i8 ment, therefore, has not only the powers expressly granted to it by the constitution, but also those which by reasonable iimplication are included in or flow from those expressly granted. Indeed, this is specially declared in the constitu- tion itself, which provides that Congress shall have power " to make all laws which shall be necessary and proper for carrying into execution " the powers conferred upon it (Const. Art. I, § 8, 1[i8). It has never been questioned, therefore, that the depart- ments of the federal government have implied as well as ex- press powers, but controversy may arise as to whether a given power claimed for the federal government as an implied power is properly implied in the grant of specified powers. In a controversy of this character there may be great difference of opinion ; but the solution will be facilitated by bearing in mind that the meaning of the framers of the constitution is to be sought in the language used ; and that an implied power which is claimed should be justified as a reasonable grant by implication in some of the enumerations of express power. At various times there have been conflicting views with refer- ence to particular powers claimed as incidental, between those who consider themselves strict constructionists, and those who insist upon a liberal interpretation of the constitution. But in determining what acts are necessary and proper in the exer- cise of the enumerated powers, a liberal interpretation has been favored by the supreme court of the United States. It is perhaps not possible to improve on the language of Chief Justice Marshall, in announcing the rule to be followed in the interpretation of the federal constitution : " Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional" {McCudoch V. Maryland, 4 Wheaton, 316, 421). Examples of the exer- cise of implied powers by Congress are collected in another place. (See below, § 117.) § 19] Federal Supremacy. ^^ 19. Supremacy of Federal Government in Exercise of Powers Granted. Although, as compared with a state government, the federal government is one of limited and enumerated powers rather than of general powers, it does not follow that it is in any way inferior or subordinate to a state government. On the other hand, its very nature and the purpose for which it was created indicate that in the exercise of the powers granted either ex- pressly or by implication, it must be supreme. In Article VI (f 2 ) of the federal constitution, it is declared : " This consti- tution, and the laws of the United States- which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land ; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.'' In expounding this provision it has been said : " If any one proposition could command the universal assent of mankind, we might expect it would be this : that the government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result necessarily from its nature. It is a government of all; its powers are delegated by all; it repre- sents all, and acts for all. Though any one state may be willing to control its operations, no state is willing to allow others to control it. The nation, on those subjects on which it can act, must necessarily bind its component parts " (Marshall, Ch. J., in McCulloch v. Maryland, 4 VVheaton, 316,405). Moreover, in order that the supremacy of the federal government as to those matters entrusted to its authority shall be maintained without encroachment, it is essential that the final interpreta- tion of the extent of its powers shall rest with it alone ; and one of the functions of the federal judiciary is to determine ultimately the construction of the federal constitution with reference to the powers of the federal government. Other courts may be called upon in cases properly before them to construe the federal constitution as a part of the written law ; 44 Relations of Governments. [§ 20 but when such constitution has been interpreted in any re- spect by the supreme court of the United States, that interpre- tation becomes a part of the supreme law, binding on all the state courts, and on the citizens of the states. (See below, §§ 142,146.) A clear understanding of the declared supremacy of the power of the federal government, and of the conclusiveness of the interpretation by the supreme court of the United States of the scope of these powers, will indicate that there is no possibihty of any conflict between the federal government and the government of a state. If conflicting assertions of authority are to be reconciled by peaceful and lawful means, rather than by the resort to violence, it must be by the recog- nition of ultimate authority somewhere to determine the con- troversy; and there can be no reasonable question as to the intention of the framers of the constitution that this ultimate solution should be furnished by the federal government, and that it should be binding upon all. 20. Iiimitations in the Federal Constitution on State and Federal Po'wer. Not only is the federal constitution in itself a limitation on state power, in so far as the exercise by the federal government of the powers conferred upon it are inconsistent with any exer- cise by the state of authority in conflict with that of the federal government as to matters coming within its legitimate scope, but it was deemed necessary in some respects definitely to limit the powers of the state governments, or to prohibit their exercise of authority in ways inconsistent with the general pur- pose of forming a national government. Therefore it is ex- pressly provided (Art. I, § 10) that "no state shall enter into any treaty, alliance, or confederation, grant letters of marque or reprisal, coin money, emit bills of credit, make any- thing but gold and silver coin a tender in payment of debts, ... or grant any title of nobility " ; and further, that " no state shall without the consent of the Congress, levy any im- posts or duties on imports or exports, except what may be § 2i] Federal Limitations. 45 absolutely necessary for executing its inspection laws," etc., nor, " without the consent of Congress, lay any duty on ton- nage, keep troops or ships of war in time of peace, enter into any agreement or compact with another state or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay." Further con- sideration will be given to these limitations in connection with the discussion of particular branches of the federal power, but they must properly be borne in mind here as indicating the intention to subordinate the authority of the state to that of the federal government in national matters. The relation of the states to each other is also in some re- spects regulated by the federal constitution. The prohibition noticed in the preceding paragraph as to agreements or com- pacts would prevent any attempt being made by two or more states, through concerted action, to interfere with national authority ; and would indicate the intention that, while each state in itself is recognized as having powers of government, the relations of the states to each other, and of each to the citizens of each other, are to be determined by the federal constitution, and not by mutual arrangement. But there are further specific provisions as to the relations between the states. Thus, in Article IV it is specified that " full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state"; that "citizens of each state shall be entitled to all privileges and immunities of citizens in the several states " ; and that fugitives from jus- tice, fleeing from one state to another, shall be surrendered back by the latter on demand of the chief executive authority of the former. These clauses must also be more fully considered in another connection (see below, ch. xxxiii), but are important here as indicating the nature and scope of the federal plan. 21. Limitatious in the Federal Constitution for Protection of Personal Rights. When the federal constitution was framed by the constitu- tional convention, it was assumed, not only that the protection 46 Relations of Governments. [§ zi of the personal and property rights of the citizens of each state would remain primarily with the states themselves, but also that, as the federal government was to be a government pos- sessing only enumerated powers, no general guaranties to indi- viduals against the improper exercise of authority on the part of the federal government were necessary. Nevertheless, a few restrictions on the federal government were specifically im- posed. Thus (Art. I, § 9), the privilege of the writ of habeas corpus was guaranteed ; the passage of bills of attainder or ex post facto laws was prohibited, and the power to grant titles of nobility was denied, and in the same connection the powers of the federal government were restricted so that there should be no discriminations made between the states or the citizens thereof. But there were no express provisions for the protection of personal and property rights. As against the federal government, there was no guaranty of due process of law, or the protection of contract rights, or of jury trial in civil cases and the usual forms of procedure in criminal cases. The omission from the federal constitution of any such general guaranties was made a ground of objection to its adoption in several of the state conventions. The fact that the state con- stitutions all contained some general guaranties in the form of a bill of rights gave countenance to the assumption that such guaranties were an essential and fundamental part of a consti- tution, and in some of the state conventions the ratification of the proposed federal constitution was accompanied with the recommendation that a bill of rights be added to it by way of amendment. Accordingly, ten amendments to the federal constitution were proposed to the several states by the first Congress, and were ratified and became a part of the constitu- tion prior to the year 1791. Of these Amendment IX is in the nature of a general saving clause, and Amendment X emphasizes the fact that the federal government has under the constitution only the powers enumerated, all others being reserved to the states or to the people. The first ten amend- ments indicate a prevailing distrust of the power which the federal government might attempt to exercise. They indicate § 2 1] Personal Rights. 47 anxiety for the preservation of local freedom of government, and the wish to rely for protection of personal and property rights on the state governments, which, it was evidently as- sumed, would be safer repositories of power with respect to the rights of their citizens. But even in the constitution as originally adopted, some restraint was imposed upon the states in behalf of the personal security of the people. For example, it is provided (Art. I, § 10) that no state shall "pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts." And after the Civil War, as a means of making permanent the per- sonal liberty which had accrued to individuals of the negro race, three amendments were adopted, limiting in very impor- tant respects the powers of the states with reference to the civil and political rights of their citizens. By Amendment XIII (1865) slavery was prohibited. By Amendment XIV (1868) citizenship in the states as well as in the Union as a whole was defined, and abridgment of the privileges or im- munities incident to citizenship forbidden ; and the states were also prohibited from depriving any person of life, liberty, or property without due process of law, or denying to any person the equal protection of the laws. By Amendment XV (1870) the states were restrained from denying or abridging the right of suffrage on account of race, color, or previous condition of servitude. The adoption of these three amendments indicated a shift- ing of responsibility for the protection of the citizen against the undue exercises of governmental authority by a state government from the state itself to the federal government. The controlling consideration no doubt was the purpose to guarantee to the negroes the same civil and political rights accorded under the laws of any state to the white citizens of that state. But the ultimate result, especially of Amendment XIV, has been to place personal and property rights largely within the protection of the federal government. The guaranty of due process of law and the equal protection of the laws, found in that amendment, has been broadly invoked as a pro- 48 Relations of Governments. [§22 tection against state legislation which would result in an undue restriction in any respect of the exercise of personal liberty, or the ownership and profitable employment of property, and also as against unwarrantable discriminations between classes of persons in the enjoyment of personal and property rights. It is not to be assumed, however, that prior to the adoption of Amendment XIV, personal and property rights were not protected against arbitrary exercise of state power. Guaran- ties of due process of law and the equal protection of the laws were already found in the constitutions of the different states. But this amendment to the federal constitution gives to those persons who are entitled to the protection of the laws, and the enjoyment of the privileges of citizenship, the uniform security afforded by the specific provisions of the federal constitution itself, and a resort to the legislative, executive, and judicial power of that government for the protection of the rights thus guaranteed as against infringement by state action. (See below, ch. xliv.) 22. Bills of Rights in State and Federal Constitutions. In the first constitutions of the states, adopted just before or immediately after independence, and in nearly all the state constitutions adopted later, either during the Revolutionary period or subsequently, a special enumeration is made of rights of the people which are not to be infringed by the government set up by the constitution. These enumerations are sometimes called " declarations of rights " and sometimes " bills of rights." But whether introduced by any such formal title, or embodied without separate designation, they are intended as, and con- stitute, distinct hmitations on the powers of the state govern- ment. The terms " declaration of rights " and " bill of rights " are borrowed from English history, the instrument known as the Declaration of Rights having been promulgated by Parlia- ment in 1688, and presented to Wilham and Mary, who were jointly succeeding to the throne of England, in consequence of the dethronement of James II by Parliament and the exclu- sion of his heirs from the succession. The Bill of Rights was § 22] Bills of Rights. 49 adopted by Parliament and approved by William and Mary in the year 1689, as a statement of some of the fundamental principles which should be recognized by them in the adminis- tration of the government. It recites the grievances which had already been set forth in the Declaration of Rights, and declares, among other things, that the power to suspend or dispense with the laws, or the execution thereof, is illegal ; that money can be levied only by act of Parliament ; that the right to petition shall be preserved ; that standing armies shall not be raised or kept within the kingdom in time of peace without the consent of Parliament ; that the right to bear arms and freedom of speech and of the press shall be protected ; that excessive bail shall not be required, nor cruel or unusual punishments inflicted, etc. The corresponding declarations or bills of rights found in the various state constitutions in- clude similar declarations, and others more fundamental and pertinent. They are, of course, not uniform as to the subjects to which they relate ; but in most of them are important guar- anties of jury trial, procedure according to due process of law, guaranties of personal and property rights, freedom of speech and of the press, and the like. So far as these provisions have been the subject of subsequent judicial controversy, they will be hereafter referred to. It may also be noticed as a matter of constitutional history that, even before the adoption of state constitutions, the rights of the people of the colonies to the guaranties of personal liberty found in the English Declaration of Rights had been fre- quently asserted, as, for instance, in the Declaration adopted by the first Continental Congress, and in the Declaration of Independence. The federal constitution, as originally adopted, contained some express limitations on the states, such as that " no state shall make anything but gold and silver coin a legal tender in the payment of debts; emit bills of credit; . . . pass any bill of attainder or ex post facto law, or law impairing the obligation of contracts " (Art. I, § 10), and also some limita- tions which are general in their terms, such as that the 4 50 Relations of Governments. [§ zz privilege of the writ of habeas corpus shall not be sus- pended; no bill of attainder or ex post facto law shall be passed ; and no tax or duty shall be laid on exports (Art. I, § 9). It is evident that these general limitations are on the federal government, and not on the states, so far as the states are not mentioned ; for it would have been useless to provide in section 10 that no state shall pass any bill of attain- der or ex post facto law, if the general provision in section 9 that no bill of z.\X3\ViA^r ox ex post facto law shall be passed was intended to be applicable to the states as well as the fed- eral government. Therefore the general rule of construction has been that general limitations in the federal constitution are applicable to the federal government only, and not to the states, unless the states are expressly referred to {Barron v. Baltimore'). But these general limitations in the federal con- stitution, as originally adopted, were not broad enough in their scope to constitute a bill of rights in any proper sense. Of the ten amendments adopted soon after the constitution went into effect the first eight contain provisions analogous to those usually found in the bills of rights of the state constitu- tions. Without now enumerating or discussing the provisions of these amendments in detail, it is sufficient to say that they relate to freedom of religion ; right to bear arms ; the quarter- ing of soldiers in time of peace ; protection against searches and seizures except upon warrant duly issued ; procedure in criminal cases ; and the right to trial by jury in civil cases. It is clear, from the history of the discussion which led to their adoption, and the arguments presented in support thereof, that they relate to the federal government, and not to the govern- ments of the states ; that is to say, when it is provided that the right of people to bear and keep arms shall not be in- fringed, it is intended to say that the government of the United States shall not interfere with that right ; and likewise, when it is provided that no person shall be held to answer for a capital or otherwise infamous crime, unless on the present- ment or indictment of a grand jury, it is intended that indict- ment shall be necessary in the federal courts, in cases for § 2z] Bills of Rights. 51 infraction of federal law, no reference being made, either expressly or by implication, to procedure in tiie state courts in criminal cases ; and further, when it is said that in suits at common law, the right of trial by jury shall be preserved, the states are not thereby restrained from providing for trials with- out a jury in state courts. The first eight amendments to the federal constitution are therefore to be interpreted as limita- tions on the federal power, and in no sense as having refer- ence to the power of the states. Indeed, for all practical purposes it would have been unnecessary to embody such provi- sions in the federal constitution, for similar provisions were at that time found in the constitutions of most of the states. But when it was sought to change some of the state constitutions, so as to provide for trial of accused persons on criminal charges, made in some other method than by indictment, it became very material to determine whether the states were in this respect restricted by the provisions of the federal consti- tution, and it was definitely settled by the decision of the Supreme Court of the United States in the case of Hurtado v. California (1884) that, so long as no express limitations on state power were violated, the states might, for their own tribu- nals, adopt any provisions as to procedure in criminal cases that they should think wise or expedient. (See below, ch. xlii.) It has been argued that the adoption of Amendment XIV, in which it is provided that no state shall make or enforce any law which shall abridge the privileges or immunities of the citi- zens of the United States, rendered the first eight articles of amendment to the federal constitution binding on the states, the theory being that these articles enumerated privileges and immunities which, by Amendment XIV, the states were prohibited from abridging. But this argument has not been endorsed ; and in Maxivell v. Dotv the construction orig- inally adopted, that the first eight articles of amendment are in the nature of a bill of rights with reference to the fed- eral government and the federal government alone, has been adhered to. One question, however, remains unsettled, and that is 52 • Relations of Governments. [§ zz whether the first eight amendments to the federal constitution apply to legislation by or proceedings in the courts of terri- tories or territorial possessions of the United States. To understand the difficulties surrounding the solution of this question, it must be borne in mind that the federal constitu- tion was adopted by the people of the original thirteen states, and that it evidently contemplates and is drawn with reference to a federal government, the subjects of which are citizens of states. As has already been pointed out (see above, § i6), the powers of the federal government as to citizens of states are limited. But Congress is given authority to make " all needful rules and regulations respecting the territory or other property belonging to the United States " (Const. Art. IV, § 3, 1[ 2). And under this grant of power it has been held that Congress can create territorial governments, and provide at its discretion for the government of territory of the United States in which no territorial government has been provided for. (See below, ch. xxxii.) Those who live within the limits of such organized or unorganized territory, and not within the limits of states, are governed entirely by the federal govern- ment, or territorial governments created by it. Further, it is to be noticed that, so far as the first eight amendments relate to procedure in courts, they apply to the federal courts, prop- erly speaking, that is, to the courts created in pursuance of Article III of the constitution, and not to the courts of the states. Now whether these eight amendments apply to terri- torial or other courts created directly or indirectly under the authority of Congress to legislate for the territories, has been a subject of much controversy. On the one hand it has been said that the constitution was evidently not drawn with any special reference to permanent possession by the United States of territory not incorporated into states; and on the other hand that the constitution as a whole is a limitation on the power of Congress exercised for any purpose. It has recently been decided by the Supreme Court of the United States, however, that the provisions as to the right of jury trial in civil cases, and by inference other provisions found in the §22] Bills of Rights. 53 first eight amendments, are not applicable to procedure in courts created under Act of Congress for the government of the Philippine Islands {Dorr v. United States). The con- clusion reached in that case warrants the general statement that the limitations as to methods of procedure are not appli- cable in proceedings before territorial courts, save so far as they may have been made applicable by act of Congress. The last three amendments to the federal constitution are very different in their scope and purposes from those of the first eight. Amendment XIII, prohibiting slavery or involuntary servitude, is applicable, not only to the federal government, but also to state governments- and to individuals as well ; by its language it reaches into every place within the United States or subject to its jurisdiction. Amendment XV, prohibiting the denial or abridgment of the right to vote on account of race, color, or previous condition of servitude, expressly applies to both the federal and state governments. Amendment XIV contains various provisions, some of them expressly applicable to the states, others to both the federal and state governments. These three articles are not in any proper sense a portion of the bill of rights of the federal constitution. CHAPTER IV. RELATIONS OF DEPARTMENTS OF GOVERNMENT TO EACH OTHER. 23. References. Distribution of Powers: T. M. Cooky, Constitutional Limitations, ** 87-92; The Federalist, Nos. 47, 48, 51; T. M. Cooley, Constitutional Law, ch. iii ; H. C. Black, Constitutional Law, ch. v ; Kilbourn v. Thompson (1880, 103 U. S. 168) ; W. Blackstone, Commentaries, I, ch. ii) ; Montesquieu, Spirit of Laws (Nugent's Trans.) Book XI, ch. vi ; A. B. Hart, Actual Government (Amer. Citizen Series), § 53 ; E. C. Mason, Veto Power ; J. B. Thayer, Cases on Constitutional Law, 1. Independence of Executive: Marbury v. Madison (1803, i Cranch, 137; I Curtis' Decisions, 368; Marshall's Decisions (Dillon's ed.), i; Mississippi 1. Johnson (1866, 4 Wallace, 475; McClain's Cases, 102; Thayer's Cases, 196); Georgia v. Stanton (1867, 6 Wallace, 50; Thayer's Cases, 201); State ex rel. v. Stone (1894, 120 Mo. 428; McClain's Cases, 105); Stateex rel. \. Nash {\^2,(>(>0\ao,6\z ; 64 N. E. Rep. 558) ; United States ex rel. v. Black (1888, 128 U. S. 540 ; McClain's Cases, 109). Legislature cannot exercise Judicial Power : T. M. Cooley, Constitutional Limitations, ** 87-92, 392; Taylor ^ . Place {^v%\(i, 4 R. I. 324; Thayer's Cases, 159; McClain's Cases, 79). Judges can discharge only Judicial Functions : Case of Super- visors of Elections (1873, 114 Mass. 247; McClain's Cases, 113); State ex rel. v. Barker (1902, n6 Iowa, 96; 89 N. W. Rep. 204). Legislative Power cannot be delegated : Rice v. Foster (Del., 4 Harrington, 492); Santo v. State (1856, 2 Iowa, 203); Geebrick v. State (1857, 5 Iowa, 491; McClain's Cases, 88); Dalby v. Wolf (\%(,z, 14 Iowa, 228 ; McClain's Cases, 91) ; Stone v. Charleston (1873, 114 Mass. 214; McClain's Cases, 93) ; Field w. Clark (1892, 143 U. S. 649; McClain's Cases, 95). Impeachment of Officers : J. Story, Constitution, §§ 688, 689, 742- 813; J. R. Tucker, Constitution, §§ 198-201; J. N. Pomeroy, Constitu- tional Law, 480-494; S. F. Miller, Constitution of the United States, 171, 213 ; The Federalist, No. 65 ; T. M. Cooley, Principles of Constitutional Laio (3d ed.), 177, 178 ; H. C. Black, Constitutional Law, §§ 82-84 ; R- Foster, Constitution of United States, ch. xiii; A. B. Hart, Actual Cavern- s' § z4] Departments Independent. ^^ ment (Amer. Citizen Series), §139; H. Hallam, Constitutional History of England (Am. ed. 1893), I, 350, 351, 364; W. Blackstone, Commen- taries, IV, ch. xix; James Wilson, Lectures on Jurisprudence (Andrews' ed.), II, 44. Checks and Balances: T. M. Cooley, Constitutional Limitations, ** 34' 35 J '''• ^- Cooley , Principles of Constitutional Law, cli. vii. 24. Departments Independent. The division of the powers of government among the three departments, executive, legislative, and judicial, rests on the assumption that while no one of them is in itself sovereign and unlimited in authority, yet each is independent of the others. The theory involves, first, a limitation of each department to its own sphere of action ; and, secondly, absolute independence and supremacy within that sphere. This principle of exclusion is, however, rather a general principle than a rule of exact ap- plication. The functions of the three departments of govern- ment do necessarily, to some extent, overlap. The legislature not only makes the laws which the executive enforces, and which the judiciary applies in the determination of contro- versies, but it has the exclusive power of taxation and appro- priation of money, and, for the funds necessary to carry on the other branches of the government, those branches are therefore dependent upon the legislature. On the other hand, the executive department controls the military force, and for the protection which the legislature and the judiciary may require, they are dependent on the executive. Furthermore, each de- partment in the performance of the functions assigned to it may have occasion to exercise powers and duties analogous to those of the other departments; for instance, the executive department, in determining whether money shall be collected for taxes or claims paid out of appropriations, must often decide judicial questions ; and the judicial department, on the other hand, in repressing interruption or preventing interference with its proceedings, or in providing the material means for carrying on its operations, may exercise functions analogous to those of the executive or the legislature. It will not, therefore, be possible to draw any very definite line between the functions 56 Relations of Departments. [§ 25 of the three departments, although some important questions affecting their relations have been definitely settled and should be well understood. 25. Independence of the Executive, All executive officers are under obhgation to recognize and enforce the laws made by the legislative department within its proper sphere of action ; and subordinate executive officers, such as the secretaries or heads of departments, may be com- pelled by proceedings in court to perform duties which are purely ministerial, and may be held liable in damages for in- juries suffered by private persons by reason of the failure to discharge legal duties affecting the rights of such persons. If, however, the duty imposed upon the inferior executive officer is one involving the exercise of discretion — and many duties thus imposed are of this character — then, while he may be required to act, he cannot be controlled in the exercise of the discretion imposed upon him by law, nor can he be held Hable in damages, if his discretion is exercised in good faith and on a proper occasion. As to the chief executive, it has generally been considered that the independence of the executive department, while it does not exempt him from the obligation to respect the law, does require that he be free from interference on the part of the judicial department. Thus, courts cannot compel the execution of a grant of land by the executive, although it is required by law; nor can they enforce his attendance in court or before a grand jury as a witness {Siate v. Stone). But on these questions there is difference of opinion among the courts, some being inclined to insist that, as no officer- is too high to be amenable to law, the courts can compel the observance of law by the chief executive as well as by any other person ; whilst others insist that it would be an interference on the part of the judiciary with executive independence if the chief executive were coerced as to his official action by the orders of a court, or prevented from performing his high executive functions by imprisonment. However, any clashing of author- § 25] Executive Independence. k^j ity between the executive and the judiciary has usually been avoided by the exercise of wise forbearance and mutual dis- cretion. For instance, the president or a governor will not refuse to give testimony in a proper case pending in court in which his evidence is sought, though he might insist that he cannot be compelled to do so ; and the courts, on the other hand, will not issue compulsory process against such an officer, though they may request his presence for the giving of testi- mony on a proper occasion. It is always to be borne in mind that the executive is vested, under the constitution, with independent power and discretion, and that he cannot by any legal process be compelled to submit to inquisition on the part of the courts as to matters solely within the proper scope of the discharge of his executive duties, nor dictated to with reference to such matters by the courts, or even the legislature. Fortunately the occasion has seldom arisen for considering how far the courts may proceed against an individual who is vested with supreme executive authority, for acts or conduct not official in character. He may be sued as any other indi- vidual, and his private property may be taken to satisfy a judgment. Whether he could be arrested, tried, and punished by imprisonment, while holding his official position, for crimes committed by him as an individual, and not in connection with his official duty, may well be left unsettled until some occasion arises for the determination of the question. No such difficulty exists with reference to subordinate executive officers. They are in every respect fully amenable to the judiciary. No com- mands of superior officials will excuse them for violations of law, nor will any plea of interference with the performance of official duty be sufficient to exempt them from obeying the process of the courts. It may well be assumed that necessary executive functions can be otherwise discharged, although they as individuals are incapacitated from performing them (Marbury v. Madison). The chief executive and other officers are subject to removal from office on impeachment by the legislative department for crimes and misconduct while in office, and this power of 58 Relations of Departments. [§26 supervision on the part of the legislative department over the executive has sometimes been suggested as evidence of the subordination of the executive to the power of the legislature. But in discharging the power of impeachment and trying the officer for the crime or misconduct alleged against him, the branches of the legislative department act rather in a judicial than a legislative capacity. The court of impeachment, con- sisting of the senate in the case of a federal officer, and usually of the higher branch of the state legislature in the case of a state officer, does not act as a legislative body, but proceeds in accordance with the provisions of the federal or state con- stitution, as the case may be, to determine whether the officer charged has been guilty of the crime or misconduct alleged, and whether, in consequence thereof, he shall be removed from office. (See below, § 28.) In this there is no infringement by the legislative department of executive independence. It has already been pointed out (see above, § 7) that there are many political questions and questions affecting international relations, as to which the action of the executive department is conclusive, and cannot be reviewed or passed upon by the courts. 26. The Legislature Cannot Exercise Judicial Fovrei. The independence of the different departments of government is especially emphasized with reference to the functions of the judiciary. It is a fundamental principle of constitutional gov- ernment that the courts, which are organized for the purpose of deciding controversies, shall be free from bias or extraneous influence, and that judicial questions shall be determined by the courts, and not by the executive or the legislature. There- fore it is fully recognized that under our system of government questions which are in their nature essentially and necessarily judicial cannot be passed upon save by judicial tribunals ; and the decisions of such tribunals are final and cannot be reviewed by any other department of the government. Neither the legislature nor the executive can, as between adverse claimants to property, vest the title in the one or the other, and thus in § 2/] Judicial Independence. 59 effect adjudicate the ownership of the property ; nor can the legislature determine that an individual has been guilty of crime, and subject him to punishment therefor without a judi- cial trial. These principles are involved in the usual constitu- tional guaranties of due process of law and prohibition of bills of attainder ; but a fuller exposition of them will be given in another place. (See below, §§ 228, 258.) However, an important application of these principles should be noticed here, involving the power of the legislature to interfere with the judgments of the courts. It is well settled that when a judgment has been rendered, the legislature cannot by a statu- tory enactment undo what the courts have done, or reverse their decisions. For instance, although the legislature may authorize new trials, it cannot provide for a new trial in a case already tried ; and although it may provide for appeals, it cannot of its own authority in a particular case review or reverse a decision of a court. Some judicial authority is exercised in England by the House of Lords, but in so acting it is a court, and not a legislative body. Likewise at one time in New York the senate was a court for the correction of errors, to which appeals might be taken from the courts of the state, but this also was the exercise of judicial, and not legislative, functions. Legis- lative divorces have been recognized as valid in many of the states, it being considered that the power to grant a divorce was not a judicial power ; but in some of the states, at least, there are now constitutional prohibitions of legislation with reference to granting divorces in specific cases, although, of course, the legislature may provide the laws in accordance with which divorces may be granted by the courts. 27. Judges of Courts Cannot Exercise Executive Functions. The independence of the judiciary, which, as suggested in the last section, has been preserved with peculiar care, involves also the exemption of the judges of the courts from any obliga- tion to perform functions which are not judicial. There are in many states inferior tribunals of a mixed character, such as 6o Relations of Departments. [§ 28 the so-called county courts, the judges of which have adminis- trative as well as judicial powers ; but the courts provided for by the constitutions of the different states for the exercise of judicial power, and the judges thereof, are regarded as exempt from any duty to perform functions which properly belong to other departments of the government. Thus the judges can- not be required to act as commissioners of elections- (C«i'if of Supervisors of Elections) nor as trustees for the administration of municipal works such as waterworks (State v. Barker) , or the like ; and it may be stated as a general proposition that such authority cannot be exercised by them. 28. Impeachment of OfScers through Legislatures. By the constitution of England, Parliament exercises some restraint on the power of the king by means of the impeach- ment of the king's ministers, the officers appointed by him to discharge important functions of government. This power is said to have been exercised by Parliament as early as the year 1376, and has been recognized throughout the subsequent con- stitutional history of Great Britain down to the present time, the charge being presented by the House of Commons to the House of Lords, in which the trial for the offence is conducted. In the Act of Settlement (1700), the king was expressly pro- hibited from exercising the power of pardon with reference to a charge made or punishment imposed by way of impeachment. This power of Parliament no doubt furnished to the framers of state and federal constitutions the suggestion of a means by which the legislative department might exercise a legitimate restraint on executive power, and provision is made in many, if not all the state constitutions, as well as in the constitution of the United States, for the removal of officers by the higher branch of the legislative body on complaint of the lower branch. It is to be noticed, however, that the power is circumscribed by our written constitutions as to (i) the persons who may be impeached, (2) the misconduct which maybe made the ground of impeachment, (3) the method of procedure, and (4) the punishment to be imposed. § 28] Impeachment. 6i By the federal constitution (Art. II, § 4), it is provided that "The president, vice-president, and all civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors," and it is now generally conceded that only one who is in office can be thus proceeded against, and that the punishment can only extend to his removal from office and disqualification for holding office in the future. But he may be tried and punished by the courts in accordance with law for any crime he may have committed, notwithstand- ing the impeachment (Art. I, § 3, IT 7)- The president's power of pardon cannot be exercised in cases of impeachment (Art. 11, §2,1 i). , There has been much uncertainty as to the grounds for removal by impeachment. Those specified in the federal con- stitution are, no doubt, exclusive so far as federal officers are concerned ; but it may now be regarded as settled by practice that " high crimes and misdemeanors " may include misconduct in office which does not in itself constitute a crime. The impeachment, that is, the accusation against the officer, is formulated by the lower branch of the state legislature or of Congress and presented to the higher branch, which acts as a court for the trial of the officer on the charges presented, and in the case of the United States Senate there is a special pro- vision that when the president of the United States is to be thus tried, the chief justice of the supreme court of the United States shall preside, and that a conviction can be had only upon the concurrence of two-thirds of the members present (Art. I, § 3, ITS). Any attempt on the part of the legislative department to interfere with the executive department by removal of the president or other executive officer on accusations not involv- ing breach of duty, as distinct from the exercise of a legitimate discretion, would be wholly unwarranted by the spirit of our constitutional system, and fortunately no such effort, if it can properly be said to have been made, has ever been successful. 62 Relations of Departments. [§29 But final authority in determining the sufficiency'of the grounds presented is with the legislative body before which the officer is put on trial, and the courts have no power to interfere with the proceedings or pass upon the validity of the action taken. 29. Legislative Power may not be Delegated. The legal principle that an officer or agent cannot delegate to another the powers confided to him, unless authorized to do so, is specially applicable to legislative bodies. Since the power to make laws is vested in the legislative department, and involves a large exercise of discretion and judgment to be discharged by those direcdy selected for that purpose by the people, it is properly insisted that the authority thus conferred cannot be transferred to any other person or body of persons, unless authorized by the constitution. Therefore, it is well settled that, unless in the state constitution there is some provision made for a referendum (see above, § 4), the legisla- ture cannot make the validity of a statute depend upon the result of a popular election, in which the voters are asked to decide whether or not the proposed law shall go into effect {Rice \. Foster ; Geebrick v. State). The constitutional power of the electors with reference to the making of laws, in the absence of a provision for referendum, is limited to the selec- tion of members of the 'legislature, in whom the legislative authority is vested. For the same reasons, it is well settled that Congress cannot delegate to the president the power to determine whether or not a statutory provision shall become a law. "While the president may in proper form approve or veto a bill which has passed both houses of Congress, he cannot be given authority, in his own judgment and dis- cretion, to determine whether a proposed measure shall go into effect. A statute must rest for its authority on its lawful adoption by the houses of Congress and approval by the president, and not merely on the executive authority. A distinction must be drawn, however, between the making of laws, and the provision, by means of laws duly made, for the exercise of authority and discretion by some officer or § 3°] Delegation. — Checks and Balances. 63 body, exercised in accordance with the provisions of such laws. Thus, the legislature of a State may by statute, duly enacted, leave it to be determined by vote of the electors of the cities whether or not licenses for selling liquor shall be granted in such cities, or whether domestic animals shall be allowed to run at large (Dalby v. Wolf) , and Congress may, by statute regularly passed, leave it to the president to decide whether retaliatory tariff duties shall be collected- on goods brought from a particular country {Field v. Clark). More- over, limited legislative authority may be directly conferred by a state legislature upon municipal corporations, such delega- tion of authority being within the implied powers of the legis- lative department, even though not expressly recognized in the constitution. (See below, § 97.) 30. Checks and Balances in our G-overnment. It is often said that our governmental system is one of checks and balances for the purpose of restraining the undue exercise of power by the government or its officers, the theory being that unlimited power is not vested in any department ; and, to the degree previously set forth in this chapter, this statement is measurably true. Each department of government does, in a sense, serve the purpose of a check upon the others. While the legislative department cannot directly control the action of the executive or judiciary, it can, by virtue of its sole power to provide for the raising and expenditure of money, exercise a very potent influence with reference to legislative and judicial action; and the judiciary department, by virtue of its authority in a proper case to pass upon the validity of the acts of the legislature or the executive, can restrain those • departments within the scope of their proper functions. Again, the division of sovereignty between the federal and the state governments, so that the federal government has supreme power as to limited subjects of a federal nature, while the state governments have general power as to all matters not placed in the control of the federal government, makes each, to some extent, a check upon the other. But the theory of checks and 64 Relations of Departments. [§ 3° balances must not be interpreted as meaning tliat either tlie state or federal government may interfere with the other in the proper discharge of the powers conferred upon it ; nor with the well-established rule that in case of an apparent con- flict of authority between a state and the federal government, the latter has the ultimate power to decide upon the extent of its own authority. This power is to be exercised, it is true, in accordance with the provisions and limitations of the constitu- tion, but the necessity of providing some tribunal where such conflicts of authority may be authoritatively decided in accord- ance with the constitution and the law, and not by force or revolution, has dictated the wise provision that the fed- eral judiciary is vested with this ultimate authority. (See above, § 19.) In other words, the checks which federal and state governments may exercise with reference to each other, and likewise those which are vested in the departments of government, are, after all, merely the checks which, by the constitution, are imposed on each; and the whole matter comes to this, that no government, or department of govern- ment, can constitutionally exceed the authority given to it, nor act otherwise than as authorized by the constitution. Part II. Organization of Government. CHAPTER V. LEGISLATIVE DEPARTMENTS. 31. References. Joseph Story, Constitution, §§ 545-904, 1410-1488, 1963; T. M. Cooley, Constitutional Limitations, ch. vi ; J. R. Tucker, Constitution, §§ 186-212; The Federalist, Nos. 52-63 ; H. C. Black, Constitutional Laxv, §§ 141, 144-148; A. B. Hart, Actual Government (Amer. Citizen Series), chs. vii, xiii, xiv ; James Wilson, Lectures on Jurisprudence (Andrews' ed.), II, ch. i ; James Bryce, American Commonwealth, I, chs. xix, xl. 32. Legislative Branches. Under the constitution of England as it has existed for several centuries, Parliament, the legislative department of the government of Great Britain, is composed of two houses, and their concurrence in legislation is necessary. The member- ship of the upper house consists of lords, both secular and ecclesiastical, whose titles are derived from the crown, and the lower branch, or House of Commons, is composed of members chosen by a limited suffrage. In the colonial gov- ernments there was usually provision for some sort of legisla- tive assembly of two branches, the members of the upper branch being appointed by the king or his representative, the governor, and the members of the lower branch elected by the people. It was natural, therefore, that in the earliest 5 65 66 Legislative Departments. [§32 state constitutions, as well as in the federal constitution, it should be provided that the legislative power should be vested in an assembly consisting of two branches, the higher branch less numerous than the lower, and that the concurrence of the two branches should be essential to the enactment of laws. This so-called bicameral system is found also in other countries, and possesses some theoretical and practical ad- vantages which have been sufficient to cause it to be retained in the formation of the later state constitutions. Indeed, this system is so fully recognized and firmly established that it may be regarded as a part of our plan of republican gov- ernment. In England the assent of the king to legislation proposed by Parliament has always been regarded as essential, and it was natural that the approval of the chief executive should likewise be required in the state and federal constitutions. But in England the king is not regarded as a part or com- ponent element of Parliament, and it cannot be properly said that the delegation of the veto power to the executive renders the executive a component part of the legislative department in the matter of legislation, and the functions of the executive in approving or vetoing proposed legislation will therefore properly be discussed in one of the chapters relating to the executive power. (See below, ch. xxi.) Although in Great Brita,in and also in the colonial governments the higher branch of the legislative body was composed of appointed members, the higher branch, under our system of government, usually called the Senate, as well as the lower and more numerous branch, usually called the House of Representatives, is com- posed of members selected by some form of election; but the qualifications and method of election of the members of the higher branch may be somewhat different from those pro- vided in case of members of the lower branch. This is especially noticeable with reference to the organization of Congress, the senators being regarded as representatives of the states, while the members of the House of Representatives are selected by vote of the people in separate districts of each state. §33] Branches. — Representation. 67 33. Legislative Representation; Election and Qualification of Members ; Privileges. For the purpose of selecting senators and representatives in the state legislature, the states are generally divided, under the provisions of their constitutions, into senatorial and rep- resentative districts, and from each one or more members are selected for the respective branches of the legislative body. By the constitution of the United States it is provided that two senators shall be chosen in each state by the legislature thereof (Art. I, § 3, 1[ i), the term of office being six years. There is now some popular agitation in ^favor of the choice of senators by popular vote instead of by legislative selec- tion, but any such change would require a constitutional amendment. In case a vacancy occurs by resignation or otherwise, while the legislature of the state is in session, it is filled by the legislature, but if a vacancy occurs during the recess of the state legislature, the executive thereof may make a temporary appointment until the next meeting of the legis- lature (Art. I, § 3, IF 2). The members of the House of Representatives of the United States are chosen every second year by the people of the several states by the electors of the state having the qualifica- tions requisite for members of the most numerous branch of the state legislature (Art. I, § 2, % i). The number of members from each state is determined by the enumeration in the census taken each ten years of the whole number of persons in each state, excluding Indians not taxed (Art. I, § 2, ^ 3, and Amend. XIV, § 2). Congress determines after each census the number of members of which the House of Representatives shall be composed, and apportions them among the various states in proportion to population, each state being entitled, however, to at least one representative. The provision of the Fourteenth Amendment that representa- tion of any state in Congress may be reduced proportionally if the right to vote is denied to any of the male inhabitants of such state, being twenty-one years of age and citizens of 68 Legislative Departments. [§33 the United States, has not as yet been the subject of any- final action on the part of Congress. The present practice is for the legislature in each state to divide the state into as many representative districts as it is entitled to have members in the House of Representatives, and to elect one member from each district, who is an inhabi- tant of such district. But even under this plan it has at times been necessary to elect members at large for the whole state, as, for instance, where the representation of the state has been changed as the result of a re-apportionment and the legislature has not yet re-districted the state accordingly. It would perhaps be competent for the legislature in any state to provide for election of all the members at large instead of by districts, if it should see fit. A representative in Congress must have attained the age of twenty-five years and have been for seven years a citizen of the United States, and at the time of election an inhabitant of the state in which he is chosen (Art. I, § 2, IT 2). Vacancies are filled by a special election called by the state executive (Art. I, § 2, T" 4). The times, places, and manner of holding elections for senators and representatives in Congress are prescribed in each state by the legislatures thereof, unless Congress makes provision on the subject, which it may do, except as to the places of choosing senators (Art. I, § 4, 1[ i). By federal statutes the times and manner of electing senators and rep- resentatives are now specifically regulated (Acts of 1866, 1871, 1872, igoi). Senators are to be chosen by the legis- lature chosen next preceding the expiration of the term of a senator, and on the second Tuesday after its organization by a majority vote of each house voting separately; but if the houses do not agree then by a majority vote of the members of both houses in joint session. Vacancies are to be filled by the legislature in the same manner. The result of the elec- tion is certified by the state executive, countersigned by its secretary of state. Representatives are to be chosen by dis- tricts on the Tuesday after the first Monday of November of § 33j Representation, 69 each second year for the Congress which commences the next year. Vacancies are to be filled as prescribed by the laws of the respective states. The control of elections is left with the states. (See below, § 200.) By statute (181 7) provision has been made for the election by each territory of a delegate to Congress,, who has all the privileges of a member except the right to vote. It would not be profitable to go into further detail as to the provisions of state and federal constitutions and statutes relat- ing to representation in legislative bodies. It is sufficient to say in general that these questions seldom come before the courts, for the reason that by provision of most of the state constitutions, as well as under the federal constitution (Art. i, § 5, ^ i) each house of a state legislature or of Congress is the judge of the elections, returns, and qualifications of its own members. Contests as to the validity of elections are there- fore determined by the house in which membership is claimed, and the action of that house is final and conclusive. Each house has also the power to expel a member for such cause as it may deem sufficient. By provision of the federal constitution (Art. i, § 6, 1 i) senators and representatives are privileged from arrest in all cases except for treason, felony, or breach of the peace during attendance at the sessions of their respective houses and in going to and returning from the same ; and they are also exempt from being questioned for any speech or debate in either house, save under the authority of the house itself; and similar privileges are granted in state constitutions. The object of the privilege from arrest is to exempt members from being interfered with by judicial procedure while in the discharge of their duties. At other times and in other respects they are subject to the jurisdiction of the courts as fully as private per- sons. Indeed, the exemption is of little practical value, as arrest or seizure of the person is no longer generally authorized except for crime, and all crimes of a serious nature are in- cluded within the description of treason, felony, and breach of the peace. •JO Legislative Departments. [§35 34. Organization and Methods of Legislative Business. By the federal constitution it is provided that Congress shall assemble at least once in every year, and, in the absence of statutory provision fixing a different time, the regular ses- sion shall commence on the first Monday in December (Art. I, § 4, T" 2). Each house determines the rules of its pro- ceedings, and has authority to punish its members for dis- orderly behavior, and, with the concurrence of two-thirds, expel a member (Art. I, § 5, IT 2). It is also provided that each house shall keep a journal of its proceedings on which the yeas and nays on any question shall be entered at the desire of one-fifth of the members present (Art. I, § 5, f 3). Similar provisions are found in state constitutions ; but it is not desirable to consider at length the methods of legislature procedure, nor the various questions of parliamentary law which may arise with reference thereto. These are matters to be determined by each legislative body for itself Each house of the legislature chooses its own officers, save that the vice-president of the United States is president of the senate (Art. I, § 3, 1[ 4), and the lieutenant-governor or other corresponding elective officer is president of the state senate. 35. Methods of Enacting Statutes. It is usually provided in state constitutions, as it is in the federal constitution (Art. I, § 7, IT 2), that a bill proposed in either house, in order to become a law, must be passed by both houses and approved by the executive, or passed over his veto (see below, § 126), and the passage of a bill by either house requires the approval of a majority of the members thereof present when the action is taken, or under some state constitutions the approval of a majority of the whole membership. Each house acts for itself, but it may act either on bills introduced in that house, and after passage trans- mitted to the other house for its action, or by approving bills §35] Methods of Enactment. 71 which have passed the other house and been transmitted to it for action. In the absence of some such provision as that found in the federal constitution (Art. I, § 7, ^ i), that all bills for raising revenue shall originate in the lower house, either house may take the initiative with reference to any kind of legislation, and a bill which has passed one house may be amended in any respect by the other. But it is only when the same identical bill has passed both houses without change that it can become a law. The enactment of a bill by the re- spective houses of a legislative body is finally evidenced by the signature of the presiding officer of each, and such signa- ture is conclusive. It is not open for the courts in determin- ing whether a statute has been lawfully enacted to go behind the signatures of the presiding officers and to investigate the ques- tion whether as a matter of fact it received in each house the necessary number of votes. In the English Parliament, bills were originally proposed or submitted by or in behalf of the sovereign, but the present practice in Parliament, and in all legislative bodies in this country, is that bills are proposed or introduced by members as they see fit, and are acted on in accordance with the rules adopted by the respective houses to govern their procedure. There is no specific provision in the federal constitution as to the time when a statute shall take effect; and an act of Congress is therefore deemed to be effectual and in force from the time of its approval by the president unless otherwise pro- vided. This is also the rule under stale constitutions con- taining no specific provision on the subject. But in some of the state constitutions it is provided that statutes shall go into effect either at the end of a specified period after approval, or at a fixed date subsequent to such approval, or on publica- tion in a specified manner. The object of postponing the taking effect of the statute to a time later than that of its enactment and approval is to enable those to be affected thereby to advise themselves as to the statute before being bound by its provisions. 72 Legislative Departments. [§ 36 36. Limitations as to Methods of Legislation. With reference to the forms and methods of enacting statutes, there are special provisions in many of the state constitutions, such as, for instance, that no special laws shall be passed, ex- cept under circumstances rendering a general law inapplica- ble ; no statute shall embrace more than one subject, which must be expressed in the title ; each bill before it becomes a law must receive the approval of the two houses of the legisla- ture and of the governor ; and the like. But as provisions on these subjects are not uniform, and are not embodied in all state constitutions, it is impracticable to give them any exten- sive consideration. The prohibition against special legislation when general laws can be made applicable is intended to prevent the granting of special privileges or the forwarding of individual interests. Where there is such a prohibition, the legislature cannot pass special statutes for the incorporation of cities, but must pro- vide for such incorporation by general statutes which may be acted upon wherever applicable ; and such a provision pre- vents the passage of statutes applicable to only a particular city and not available to other cities of substantially the same class, or under substantially the same conditions. The prohi- bition of special legislation also prevents the granting of special charters to private corporations, and makes it necessary for the legislature to provide for the formation and regulation of cor- porations in accordance with general laws on the subject. By such a provision the granting of divorces by the legislature in special cases is also prohibited. Indeed, the granting of a divorce is not properly a legislative, but rather a judicial func- tion ; but owing to the fact that before the separation of the colonies from Great Britain Parliament exercised the power of granting divorces, such power has been recognized in some of the states as belonging to the legislature. The provision against including more than one subject in a legislative enactment is intended to prevent the tacking to a statute of provisions relating to irrelevant matters, and thus § 36] Limitations in Procedure. 73 carrying through the legislature measures which would not be adopted on their own merits. It is a common device, in the absence of such a prohibition, for some members of a legislative body to secure the incorporation into a statute of a provision relating to a different subject, the supporters of the particular measure refusing to vote for the principal measure unless such provision is incorporated, and thus securing the adoption of a provision which has not really the support of a majority of the members. It is not intended, however, by the prohibition against including more than one subject-matter to prevent the incorporation in the same statute of separate provisions ger- mane to the same general purpose ; and if there is substantial connection betv/een the different parts of the statute, it will not be held invalid as in violation of such a prohibition, although very broad and general in its scope. Thus the legislature may in one statute embody all the provisions necessary to constitute a complete code of criminal law and procedure or a complete code governing the practice in the courts; or it may by a general statute provide for the organization and government of municipal or private corporations, or otherwise cover a whole branch of the law. The requirement that a statute shall not embrace any subject not embodied in or covered by the title of the act has a substantially similar purpose. The title of a statute is intended to be a brief statement of the subject-mat- ter to which the statute relates ; and if, by general terms, the scope of the statute is indicated in the title, that is sufficient. CHAPTER VI. EXECUTIVE DEPARTMENTS. 37. References. Joseph Story, Constitution, §§ 1430-1449, 1477-1480; James Kent, Commentaries on Am. Law, ch. xiii ; J. R. Tucker, Constitution, ch. xii ; J. N. Pomeroy, Constitutional Law, 126-139; J. I. C. Hare, Constitutional Law, ch. xiv ; James Bryce, American Commonwealth, I, ch. v ; The Federalist, No. 68. 38. Organization of Executive Departments. In apparent analogy to the theory of the British constitu- tion as it existed at the time of the organization of the state and federal governments, by which the executive functions of government were supposed to be discharged by the king and his ministers and other officers appointed by him or under his authority, provision is made in our constitutional system for the choice of a chief executive and subordinate executive officers. As a matter of fact the practical exercise of executive power no longer rests in Great Britain with the king, but it is now in the cabinet or ministry composed of officers technically ap- pointed by the king but in fact chosen from the two houses of Parliament, not in accordance with the king's own judgment or wishes, but in accordance with the will of the majority in Parliament, that is, for the purpose of securing the support of a majority for the measures which may be proposed or the action which may be taken by them as ministers. In the United States the theory of an independent executive department is still practically as well as theoretically retained. In the states the chief executive and also the principal execu- tive officers are selected by popular vote ; under the provisions of the federal constitution the president and vice-president are 74 § 4o] The State Executive. j^ chosen indirectly by popular vote, while the chief executive officers, composing the president's cabinet, are appointed by the president, with the approval of the Senate (Art. II, § 2, If 2). There is, however, no direct provision that the chief executive officers, who are provided for by law and designated as secretaries of different departments, shall act together as an advisorj' cabinet ; but this seems to be contemplated in the provision that the president " may require the opinion in writ- ing of the principal officer in each of the executive departments upon any subject relating to the duties of their respective offi- ces" (Art. II, § 2, If i). At any rate, it has become the practice for the president to present matters which concern the government as a whole, and not merely the administration fo any particular department, to the cabinet sitting as a body ; although action, when finally taken, is on the authority of the president, the opinion of the cabinet being merely advisory. 39. The State Executive. The chief executive officer of a state, usually called the governor, is in all states chosen by popular election. A lieu- tenant-governor is usually selected in the same manner. In some of the states the result of the election is determined by the legislature, to which the boards of canvassers in each county send the returns of the votes as to those offices in their respec- tive counties. In other states special canvassing boards count and announce the vote. In most states a plurality of votes elects. 40. Election of President. The plan provided in the federal constitution for the choice of the chief executive is complicated and in some ways unsatis- factory. The plan prescribed by the constitution is for each state to appoint, " in such manner as the legislature thereof may direct, a number of electors equal to the whole number of senators and representatives to which the state may be entitled in the Congress " (Art. II, § i, f 2). But in Amend- ment XII the details have been elaborated, and it is pro- vided that the electors chosen in each state shall meet in jb Executive Departments. [§ 40 their respective states and ballot on the question of the election of a president and a vice-president; that a certified return of the ballots cast shall be transmitted to the seat of government, directed to the president of the Senate ; that the president of the Senate, in the presence of the Senate and the House of Representatives, shall open the certificates "and the votes shall then be counted," and that the person having the greatest number of votes for president shall be the presi- dent, if he has received the votes of a majority of the whole number of electors chosen. If no person has received such majority, then, from the persons having the highest numbers, not exceeding three, on the list of those voted for as presi- dent, the House of Representatives shall immediately choose the president by ballot, voting, however, by states, the repre- sentation from each state having one vote, and to consti- tute a quorum for this purpose, two-thirds of the states must be represented, and a majority of the states shall be necessary to a choice. It is further provided that if the choice of presi- dent devolves upon the House of Representatives, and no choice is made before the fourth day of March following, then the vice-president elect shall act as president. The vice-presi- dent is chosen in substantially the same way, save that if no one person has received the votes of a majority of the presi- dential electors, then the choice shall be made by the Senate. Congress is authorized to determine the time of choosing the presidential electors in the respective states and the day on which they shall give their votes, which day shall be the same throughout the United States (Art. II, § i, 1[ 3), and by statute (1792) the Tuesday next after the first Monday in November was fixed by Congress as the day of popular vot- ing; and by another statute (1887), that the electors of each state shall meet and give their votes on the second Monday in January next following their appointment, at such place in each state as the legislature thereof shall direct. The practical working of the plan is this : that the states provide for the choice of presidential electors by popular vote, rarely by districts, almost invariably by general ballot for the § 4o] Election of President, 'j'j whole electoral college throughout the state. As the choice of a president is a party matter, this method results, save in very exceptional cases, in the choice of all electors for the state nominated on the ticket of the party which secures the greatest number of votes ; hence all the electors from a state will cast their votes for the person designated by the national convention of the party which secures the largest popular vote in that state. The electoral vote of a state is occasionally divided, however, when for some local reason one or more of the candidates for the office of presidential elector nominated by the dominant party have been defeated, although their associates on the same ticket have been elected. The evident intention in the framing of the constitutional provisions was to secure a body of presidential electors who should exercise a discretion in the choice of a suitable person for president ; but as a matter of fact no such discretion has been exercised since 1792. There might be contingencies, however, under which the electors would vote for a different person than the candidate on the ticket of their party, either by failing to carry out the implied obligation to express the preference of the voters, or, as happened in 1868, if the party candidate should die before the time when the boards of electors are required to cast their ballots. But even if no such contingency occurs, the result will not necessarily be the same as though the voters in each state cast their ballots directly for president ; and it has several times happened that the candidate for president receiving a majority of the elec- toral votes was not the candidate who would have been chosen had the election been by national popular vote. In the election of 1877, when Mr. Hayes as the candidate of the Republican party and Mr. Tilden as the candidate of the Democratic party had received the votes of the electors chosen by the respective parties, a question was raised as to the legality of the returns from certain of the states, and the result depended upon whether certain returns should be recog- nized as lawful. On this occasion a compromise measure was passed by the two houses in accordance with which an extra- 78 Executive Departments. [§ 4" constitutional electoral commission was created to determine what returns should be counted ; and as a result Mr. Hayes was declared the president. Provision has since been made by statute (1887) for another method of counting the electoral vote. Whatever difficulties may arise on the subject must be settled by the two houses of Congress, in whose presence the president of the Senate is directed to count the returns. No question relating to the result of the election can be raised in the courts. 41.'' Term and Qualifications of President ; Vacancy in OfBce. The president and vice-president hold office during the term of four years, and it is required that the president be a natural-born citizen who shall have attained the age of thirty- five years and been fourteen years a resident within the United States (Art. II, § i, 1[ 4)- "In case of the removal of the president from office, or of his death, resignation, or inability to discharge the powers and duties of said office, the same shall devolve on the vice-presi- dent " (Art. II, § I, 1[ 5). Congress is authorized by law to provide " for the case of removal, death, resignation, or inability both of the president and vice-president," and this it has done by statute (1886), providing that in such case the secretary of state, the secretary of the treasury, the secretary of war, the attorney-general, the postmaster-general, the secre- tary of the navy, and the secretary of the interior, shall, in the order named, act as president (each of course only in the event of the removal, death, resignation, or inability, or ineligi- bility of those named earlier in the list). In the event of the removal, death, resignation, or inability of the president, the vice-president becomes president by virtue of the provision of the constitution, and so serves for the remainder of the term for which the president was elected. But when one of the executive officers acts as president, the position remains va- cant and is to be filled by a special election provided for by Congress. CHAPTER VII. JUDICIAL DEPARTMENTS. 42. References. Joseph Story, Constitution, §§ 1599-1636 ; J. R. Tucker, Constitution, ch. xiii ; James Kent, Commentaries on Am. Law, Lect. xiv ; The Federalist, No. 78 ; James Bryce, American Commonwealth, I, chs. xxii, xlii ; J. W. Burgess, Political Science and Constitutional Law, II, 322-325 ; A. B. Hart, Actual Government (Amer. Citizen Series), ch. xvii, 43. Selection of Judges. The powers of the judicial departments of the state and federal governments are exercised by courts provided for in their respective constitutions or created by the legislative de- partments for the purpose of exercising such judicial powers. The general functions of courts and the apportionment of powers among them will be considered later. In describing the organization of such departments for present purposes, it is sufficient to say that courts are presided over by judges ; and that these judges are selected by election or appointment, as may be provided in the state or federal constitution, re- spectively. In England the judges are appointed by or under the authority of the king, and the term of office is unlimited. In some of the older states the judges are appointed by the executive, in others they are elected by the state legislatures. In much the larger number of states, however, judges, like legislative or executive officers, are chosen by a popular elec- tion for fixed terms. But the desirability of securing the complete independence of the judiciary and removing the judges from all party influence was a sufficient argument with the framers of the federal constitution to induce them to pro- vide that the judges of the federal courts shall hold office dur- 79 8o Judicial Departments. [§ 43 ing good behavior and receive a compensation which shall not be diminished during their continuance in office (Art. Ill, §1). This means that they are appointed for life and can be removed only by impeachment. Their appointment is by the president, by and with the advice and consent of the Senate (Art. II, § 2, f 2). Even in the states in which the judges are elected there has been a tendency to secure independence of party influences by providing for long terms, or for choice at an election dis- tinct from that at which other state and federal officers are elected, or by continuing the incumbents in office by repeated re-elections. Part III. Legislation. CHAPTER VIII. STATE LEGISLATION. 44. References. Joseph Story, Commentaries on the Constitution, §§ 531-544; J. W. Burgess, Political Science and Constitutional Law, II, 41-185; James Bryce, American Commonwealth, I, ch. xl ; A. B. Hart, Actucil Govern- ment (Arner. Citizen Series), ch. vii. 45. Nature of Legislative PoTwer. Bearing in mind the difference between the powers of a state government which are general in their scope, and those of the federal government, which has only the enumerated powers conferred upon it by the federal constitution and those which are implied therefrom (see above, § 17) it is apparent that the general powers of legislation are vested in the legis- latures of the states, while Congress has legislative authority only as to limited classes of subjects. It will be useful, there- fore, to consider first the scope of state legislation. But it is not easy to be exhaustive in this respect, for the original state constitutions and some of a later period contain very few speci- fications as to the matters about which laws may be enacted. The difficulties which bring before courts questions in regard to state legislation concern limitations on, rather than the extent of, the powers of the state governments. The general 6 8j 82 State Legislation. [§ 45 object of legislation is to provide for the public good and the health, good order, education, and morals of the people ; and any statutes in furtherance of these purposes, and not in viola- tion of limitations upon powers of the state government or its legislative department, will in general be valid. In determin- ing the extent of legislative power we may properly have in mind the history of constitutional government in Great Britain and the United States, and especially the fact that in Great Britain Parliament is the legislative power, and we may safely say that those subjects with reference to which in the course of English history Parliament has been in the habit of dealing by way of legislation are within the scope of legislative power under our form of government, unless some constitutional restriction has been imposed. Out of this mass of potential powers, seldom enumerated in state constitutions, three classes of subjects for legislative power may be distinguished. (i) All legislation relating to the carrying on of the opera- tions of government, not only legislative, but also executive and judicial ; for the general laws in accordance with which the functions of the judicial and executive departments are to be discharged must be provided by the legislative power. Thus legislation will provide for the election and appointment of judicial officers and apportion their duties to them, so far as their selection and duties are not directly controlled by the constitution. As to this kind of legislation, very little need be said by way of explanation or illustration, for the whole matter is left largely to the discretion of the legislatures. (2) Legislation relating to the providing and expenditure of the revenues essential to the carrying on of the operations of the government ; and this may be described in a general way as an exercise of the taxing power. (3) Legislation relating to the control of the personal and property rights of those who are subject to the government, with a view to securing and promoting their general welfare ; for this is the main object of government. Such legislation is an exercise of the so-called police power, which will be more fully explained in the next chapter. § +6] Limitations. 8 3 46. General Considerations as to Limitations on Legislation. Before proceeding with a further discussion of state legisla- tion, it will be convenient to explain the nature of the hmitations on that • power ; for it may be stated as a general proposition that the power of state legislation in the making of laws is controlled only by its own discretion, unless it oversteps the limitations on its power imposed by the state or federal constitutions. (i) The first limitation is one already suggested, that the power which the legislature attempts to exercise must be legis- lative in its nature, for it is only legislative power that the state constitution confers upon the legislative department, and it cannot interfere with the other departments in the discharge of their functions. Such limitations, so far as they restrain the legislative department with reference to the executive and judicial departments, have already been sufficiently considered. (See ch. iv.) (2) It must also be noticed that the legislative department in the enactment of laws must comply with the forms of pro- cedure pointed out by the constitution, for only as authorized by the constitution can a legislature exercise its functions. Something has already been said in preceding chapters as to the constitution and organization of the legislative departments and the methods of exercising their powers so far as they are specified in the state and federal constitutions. (3) The state legislature is also limited in its powers by the fact that it is subordinate to the federal government as to all matters which by the federal constitution are placed within the control of that government (see ch. iii), and there- fore state legislation as to subjects over which the federal government has exclusive supervision will be invalid ; and even as to subjects which are within the scope of federal regu- lation, although the powers of the federal government are not exclusive, state legislation must yield to such federal regu- lations as have properly been adopted with reference to such subjects. 84 State Legislation. [§ 46 (4) Finally, the state legislature is restricted by the direct limitations upon its power found in either the state or federal constitution. The more general and important of these are that no person shall be deprived of his life, liberty, or property without due process of law ; that no person shall be denied the equal protection of the laws ; that the obligation of con- tracts shall not be impaired ; that private property shall not be taken for public use without compensation ; and that no bills of attainder or ex post facto laws shall be enacted. These express limitations will be considered in subsequent chapters. The discussion of these limitations constitutes the principal part of constitutional law as administered by the courts. CHAPTER IX. THE POLICE POWER. 47. References. T. M. Cooley, Constitutional Limitations, ch. xvi ; T. M. Cooley, Consti- tutional Law, ch. xiii, §4; H. C. Black, Constitutional Law, ch. xiv; J. R. Tucker, Constitution, ch. xiv; E. Freund, The Police Power ; C. G. Tiedeman, Limitations of Police Power; W. P. Prentice, Police Powers ; Munn V. Illinois (1876,94 U. S. 113; Thayer's Cases, 743; McCIain's Cases, 946); Mugler v. Kansas (1887, 123 U. S. 623; Thayer's Cases, 782; McCIain's Cases, 938); Wynehamerv. People (1856, 13 N. Y. 378; Thayer's Cases,7i5); Barbierv. Connelly (1885, 113 U. S. 27; McCIain's Cases, 925; Thayer's Cases, 623); Holden v. Hardie (1898, 169 U. S. 366; McCIain's Cases, 929); Dent v. West Virginia (1889, 129 U. S. 114; McCIain's Cases, 934); Slaughter- House Cases (1872, 16 Wallace, 36; McCIain's Cases, 18; Thayer's Cases, 516); Civil Rights Cases (1883, 109 U. S. 3; McCIain's Cases, 37; Thayer's Cases, 554). 48. General Scope of Police Power. The term " police power " is used to designate that most important function of securing the largest practicable measure of wellbeing to those who live together in the social organiza- tion. This is indeed the ultimate object of government. No very specific or complete definition or description of this power can be framed, nor has it been often attempted. Per- haps an enumeration of some of the most important subjects which indisputably fall within it will give a better idea of its scope and nature than any technical definition. (i) The legislature may provide for the acquisition, use, and control of property for the public benefit, such as for public buildings, charitable and educational purposes, high- ways, parks, and public grounds. Such property is acquired by the exercise of the power of eminent domain ; but legisla- tion in reference to the exercise of that power, and in refer- 85 86 Police Power. [§ 48 ence to control and enjoyment by the public, is within the scope of the police power. There are also public rights in navigable streams and inland lakes and the seas, bays, and other waters, so far as they are within the jurisdiction of the state, which the state may properly regulate. It may also make regulations for the preservation of fish and game on the theory that they are a species of public property in which the people of the state have a common interest. (2) Legislation as to the public school system and institu- tions of higher education, at least so far as they are provided at the public expense, is within the scope of the police power. (3) Some kinds of property and some callings are so far of a public nature that the state may regulate them to a greater extent than it may regulate property and callings not public in their nature ; and such regulations are made in the fexercise of the police power. For instance, the legislature may regulate the rates to be charged by railroads and express companies and by those operating public elevators or ware- houses, and may control the business of hotel keepers and others furnishing places of public entertainment. The exercise of the police power in the regulation of rates of charge for public services is in recent years very largely extended. Cor- porations such as gas and electric light, water, street car and other companies to which are given the privilege of using the streets of a city for the advantage of the public may be con- trolled as to their rates and charges, even though no such reservation has been expressly made by constitutional or statutory provision. The charters of such companies, although they are regarded as contracts, do not exempt them from such regulation. (See below, § 269.) (4) In the furtherance of the public welfare the legislature may control the use of property which is strictly private in its nature, and the business and conduct of individuals, on the general principle that each individual may be restricted in his own actions and in his own property so as not to interfere with the enjoyment of like privileges of others. Thus the § 49] Analysis. 87 owner of property may be prevented from using it for pur- poses obnoxious to his neighbors, that is, he may be prevented from maintaining a nuisance ; the heights of buildings in cities may be restricted ; fire limits in cities may be fixed, within which buildings of wood or other inflammable material may not be constructed ; the storage and sale of explosives or extremely inflammable materials may be regulated ; to some extent limitations may be placed on hours of labor, especially for the preservation of the health of those engaged, or for the protection of the weak, as women and children ; the sale of intoxicating liquors and drugs may be regulated and con- trolled ; a large measure of power may be exercised with reference to the protection of public health; immorality may be suppressed ; business, such as the carrying on of lotteries, which is deemed contrary to public policy, may be forbidden ; the rates of interest on loans of money may be hmited. (5) Finally, without continuing further the enumeration, which might be extended to cover a long list of subjects, the destruction of property by reason of some controlling public necessity may be authorized. 49. Police PoTwer Primarily in States. The police power lies within that great body of powers reserved to the states, and not conferred upon the federal government. In the very nature of things this ought to be so. If state governments were to be continued for any purpose as independent repositories of the powers which the people con- fer upon governments, then it was natural that in the forma- tion of our constitutional system the protection of property and personal rights, the preservation of the public health and the promotion of the general welfare would be left to the state governments. Thus it was held in The Civil Rights Cases that even under the Fourteenth Amendment of the federal consti- tution prohibiting the states from making or enforcing any law " which shall abridge the privileges or immunities of citizens of the United States," and authorizing Congress to enforce this amendment by appropriate legislation, Congress could 88 Police Power. [§ 49 not enact a civil rights act, the object of which was to protect colored persons in the equal enjoyment with white persons of the privileges of hotels, passenger trains, theatres, barber shops, and other places of public enjoyment, entertainment, or amusement, on the ground that federal legislation " cannot properly cover the whole domain of rights appertaining to life, liberty, and property, defining them and providing for their vindication. That would be to establish a code of municipal law regulative of all privileges between man and man in society. It would be to make Congress take the place of state legislatures and to supersede them," States in exercising this pohce power must keep within the limitations of federal and state constitutions, but their authority to exercise it is not conferred by the federal constitution, nor taken away by it. Such statutory provisions as were embodied in the civil rights acts may well be enacted by the states in the exercise of the police power ; but they are not within the exercise of any of the enumerated powers given to Congress by the federal constitution. It may be true that the impeUing motive for the adoption of the Fourteenth Amendment was the protection of the rights of the colored people recently emancipated from slavery ; but the protection guaranteed was against discrimination by the states themselves and not in- fringement of their rights as citizens by their fellow-citizens ; and it is well settled now that whatever may have been the motive for the adoption of that amendment, its provisions are general in their character and extend to all persons alike. (See below, §§ zr, 259.) Some classes of legislation enacted by Congress may be prompted by a desire to promote the general welfare of the people, as, for instance, the general protective tariff system and the legislation in reference to internal improvements ; but such legislation rests for its constitutionality on powers implied from those conferred upon Congress by the federal constitution. The protective tariff laws are measures properly enacted under the express power to raise revenue and to regu- late foreign commerce ; and appropriations for internal im- § 49] Primarily in States. 89 provements are justified as a' legitimate exercise of powers given to Congress with reference to commerce, post offices and post roads, and like subjects. The federal constitution nowhere gives to Congress a general power to provide for the public welfare. The phrase " for the common defence and general welfare of the United States " appears in the clause relating to the power of Congress to lay and collect taxes, duties, and imposts (Art. I, § 8, IT i), and is merely a speci- fication of purposes — possibly a limitation on the purposes — for which money may thus be raised, not a grant of legis- lative power in reference to the protection of private rights. The citizens of a state, although they are also citizens of the United States, are to look to the laws and authority of their own state to determine and protect their rights with reference to each other and each other's property, and the federal authority interferes only so far as the federal constitution itself may authorize. CHAPTER X. PUNISHMENT OF CRIME. 50. References. In General : E. McClain, Criminal Law , ch. iii ; J. P. Bishop, Criminal Law, chs. ix, xii; J. I. C. Hare, Constitutional Law, Lects. Hi, liii; J. N. Pomeroy, Constitutional Law, §§ 415-440. Treason : J. Story, Constitution, §§ 1295-1301, 1796-1803 ; E. McClain, Criminal Law, ch. Ixxv ; J. P. Bishop, Criminal Law, I, §§ 611-613, II, §§ 1202-1255; J- ^' Tucker, Constitution, §§303-305; F. Lieber, Civil Liberty and Self-Government, ch. viii ; A. B. Hart, Actual Government (Amer. Citizen Series), § 251 ; T. M. Cooley, Constitutional Law, ch. iv, § 14, ch. XV, § 2; H. C. Black, Constitutional Law, §§ 265-267; United States V. Greathouse (U. S. Circuit Court, 1863, 4 Sawyer, 457 ; McClain's Cases, 541). Counterfeiting: E. McClain, Criminal Law, §§ 774-776; J. P. Bishop, Criminal Law, I, § 988, II, §§ 274-300 ; T. M. Cooley, Constitti- tional Law, ch. iv, § 8; H. C. Black, Constitutional Law, 212; United States V. Marigold (1849, 9 Howard, 560; 18 Curtis' Decisions, 261; McClain's Cases, 474). Crimes on High Seas: J. Story, Constitution, §§ 1157-1167; E. McClain, Criminal Lew, ch. Ixxvi ; J. P. Bishop, Criminal Law, II, §§ 1057-1063; T. M. Cooley, Constitutional Law, ch. iv, § 11; H. C. Black, Constitutional Law, 21S ; United States v. Smith (1820, 5 Wheaton, 153; 4 Curtis' Decisions, 597; McClain's Cases, 501); United States v . Kodgers (1893, 150 U. S. 249; McClain's Cases, 504). Crimes within the Territories : Reynolds v. United States (1878, 98 U. S. 145). Implied Power of Federal Government: E. McClain, Criminal Law, ch. Ixvii; Logan v. United States (1892, 144 U. S. 263; McClain's Cases, 557; Thayer's Cases, 343; Chinese Exclusion Case (1889, 130 U. S. 581 ; McClain's Cases, 562). Ex Post Facto Laws: J. Story, Constitution , %% 1345, 1373; T. M. Cooley, Constitutional Limitations, ** 264-273 ; E. McClain, Criminal Law, §§78,79; J. N. Pomeroy, Constitutional Law, §§ 512, 535; J. R. Tucker, Constitution, §§ 320, 321 ; T. M. Cooley, Constitutional Law, ch. XV, § I ; H. C. Black, Constitutional Law, §§ 262, 263 ; Calder v. Bull (i798> 3 Dallas, 386; Thayer's Cases, 1435; McClain's Cases, 980); Cnmmings v. Missouri (1866, 4 Wallace, 277 ; Thayer's Cases, 1436) ; Ji'ring V. Missouri {1W2, 107 U. S. 221; Thayer's Cases, 1458; McClain's Cases, 983). 90 § 52] State Power as to Crimes. 91 51. state Power as to Crimes in General. The authority to declare what acts shall constitute crimes, and to provide for the trial and punishment thereof, is a branch of the general police power primarily belonging to the states. (See above, § 49.) No matter how serious the offence may be, if it is only an offence against the general security of person or property which the law seeks to afford, or against the general public peace and welfare, it is within the jurisdic- tion of the state ;' and the proceedings and punishment with reference thereto will be controlled by the laws of the state, subject only to the specific limitations on state power found in the federal constitution, such as that no state shall pass any bill of attainder or ex post facto law (Art. I, § 10 ; see below, § 59), nor deprive any person of life, liberty, or property with- out due process of law, nor deny to any person within its jurisdiction the equal protection of the laws (Amend. XIV). Any state legislation as to crime is, of course, subject to the limitations of the state constitution, among which are usually found provisions as to ex post facto laws, due process of law, trial for the graver crimes only on indictment, the right of trial by jury, and other like guaranties. (See ch. xlii.) It is sufficient for the present to say that the general criminal juris- diction is with the state government, and only those acts affect- ing the safety of the federal government or interfering with its exercise of the powers granted to it, can be made crimes under -federal law. 52. Federal Jurisdiction as to Crimea. Congress has authority to provide for the punishment of four classes of crimes: (i) those specified in the federal constitution or which Congress is therein given express power to punish; (2) those committed within territory which is permanently subject to the exclusive jurisdiction of the United States, such as the District of Columbia, and forts, arsenals, navy yards, and public buildings, the sites of which have been ceded for public purposes by the state to the federal govern- 92 Punishment of Crime. [§ S3 ment ; (3) those committed within territory subject to the jurisdiction of the United States, but not included within the limits of states admitted to the Union ; (4) offences the punishment of which is provided for by Congress under im- plied power to carry out the express provisions of the consti- tution. Bearing in mind that the federal government is a government of delegated and not of general powers (see above, § 17), it is evident that any criminal legislation of Congress must be sustained under some one of these four heads ; and that outside of these classes of cases. Congress has no author- ity to provide for the punishment of acts as crimes against the laws of the United States ; and, of course, it has no author- ■ ity to provide for the punishment of crimes against the laws of the states, for that is exclusively within the scope of state power. 53. The Crime of Treason. Congress is expressly given power to declare the punishment of treason against the United States (Art. Ill, § 3), and in the same section of the constitution the crime of treason against the United States is expressly defined by the declaration that it " shall consist only in levying war against them [the United States], or in adhering to their enemies giving them aid and comfort." It is not usual expressly to define specific crimes by constitutional provisions, but historically there is a good reason for giving in state and in federal constitutions an explicit definition of this crime, so that the legislative power cannot, by statute, define treason so as to include any other acts than those enumerated. By the old English law, the crime of treason was divided into (i) petit treason, a crime against a superior, and (2) high treason directed against the sovereign or the government, and it is the latter offence which is referred to when the term " treason " is used in the constitution or statutes of the United States or the states. By the early law of England, many acts were deemed high treason which were only constructively or inferentially offences against the sovereign or government, and the courts, by arbi- trary construction, punished persons for treason who had not § S3] Treason. 93 attempted any act directed against the sovereign or calculated to overthrow the government. Criticism of the sovereign or the government tending to lessen the public respect for either might be thus punished ; and prosecutions for treason were resorted to for the purpose of intimidating or overthrowing those who were hostile to the ruler, although such hostility was not manifested by any act of violence. As early as the year 1350, English statutes were passed to remedy this abuse by specifically defining what should constitute high treason, and such statutory provisions have been in force in England to the present time. It is natural, therefore, that these provisions intended as a guaranty of the security of the subjects of England against the exercise of tyrannical power on the part of the government through the courts, should be embodied in substance in the state and federal constitutions ; and the definition incorporated into the federal constitution is a por- tion of the definition found in the early English statutes. Under such constitutional provisions neither Congress nor a state legislature can make a definition for the crime of treason so as to include any acts not included in the terms of the federal or state constitution. The levying of war, under the definition of treason against the United States, implies an assembhng of persons with force and arms to overthrow the government or resist the laws. All who aid in the furtherance of the common object of levying war in however minute degree or however remote from the scene of action are guilty of treason. The enemies of the United States, within the language of the definition relating to lending aid and comfort to such enemies, must be those who are engaged in carrying on hostilities against the government. A mere conspiracy or intent to overthrow the government or to interfere with its operations, or an interference with the officers or agents of the government in the discharge of their duties, but not in pursuance of any general plan to resist the enforcement of the laws, will not constitute treason, although such an act may be punishable as constituting a crime of some other description. 94 Punishment of Crime. [§ S4 During the war of the rebelhon, it was held that the con- federate government was for the time being a government waging war against the United States in such sense that par- ticipation in such war in hostility to the United States, or the act of adhering to such hostile government, rendering aid and comfort to it or its forces in the war, constituted treason against the United States {United States v. Greathouse). It is to he noticed, however, that acts of hostility on the part of the subject of a foreign government owing no allegiance to the United States by reason of citizenship or permanent or temporary resi- dence within its limits cannot constitute treason. Such persons would not be subject to the laws of the United States. The citizens of the confederate states who engaged in rebellion against the federal government were guilty of treason, because while citizens and subjects of the United States they levied war against the United States. ■ Although the various states of the Union are not in every sense sovereign powers, nevertheless it seems to be conceded that treason may be committed as against a state and punished by the state as a crime. As a matter of fact, during the entire existence of the United States as a nation there have been very few prosecutions for treason either against the federal govern- ment or against a state. 54. The Crime of Counterfeiting. Congress may provide " for the punishment of counterfeiting the securities and current coin of the United Stales " (Const. Art. I, § 8, T 6). Such an act is not only injurious to the pubhc in impairing the general security of the currency and to the individuals who are actually defrauded, but it also affects directly the government issuing and authorizing the cir- culation of the currency, counterfeits of which are made or put into circulation; and it was therefore regarded as important that the power to punish such a crime should be given to the federal government ( United States v. Marigold) . So far as the act of counterfeiting affects the general public welfare or may result in defrauding individuals, its punishment is also § SS] Counterfeiting, Piracies, etc. 95 within the scope of state power, so that the same act of counter- feiting or of circulating counterfeit money, knowing it to be counterfeit, may constitute an offence under the state law as well as under the federal law ; and punishment under the one will not preclude a second punishment under the other. Con- gress has also provided (1877) for the punishment of those who counterfeit foreign coin or put such counterfeit coin into circulation ; this, however, is not under the express constitutional power to punish counterfeiting, but rather under the power to coin money and the corresponding and necessary implied power to protect and to preserve the soundness and the security of the currency of the country. Likewise the counterfeiting of national bank notes may be punished by the United States as incident to the implied power to authorize the issuance of such notes. 55. Piracies ; Crimes on the High Seas ; Offences against the Law of Nations. The specific power given to Congress " To define and punish piracies and felonies committed on the high seas, and offences against the law of nations " (Const. Art. I, § 8, If 10) brings within the scope of federal legislation acts directly affecting the relations of this and foreign governments. The high seas furnish the channels of intercourse with foreign nations, and although they are outside of the jurisdiction of any of the states they are still within the jurisdiction of the United States to this extent, that vessels registered under the laws of the United States, while on the seas, are regarded as parts of the territory of the United States; and criminal acts committed on such vessels are deemed to have been committed within the juris- diction of the United States. A robbery or forcible ■ depre- dation on the high seas without lawful authority constitutes piracy (United States v. Smith), and the offender is subject to punishment, if brought into the United States, as for a crime against the United States, although he may not have been at the time of the commission of the crime a subject of the United States. Pirates are treated as the enemies of all nations, ()6 Punishment of Crime. [§ 57 and they are subject to punishment in any jurisdiction into which they may be brought. Felonies, that is, crimes of a grave nature, committed by per- sons who are on vessels authorized to sail under the United States flag, are punishable by the laws of the United States, on the theory that the crime is committed within its jurisdiction. Under their admiralty and maritime jurisdiction, the courts of the United States may punish other crimes as defined by Con- gress, committed on United States vessels ; so that it may be said in general that it is within the power of Congress to pro- vide for the punishment of crimes committed on the high seas or on the navigable waters of the United States without regard to whether they are felonies or crimes of lesser degree (Umied States v. Rodgers) . 56. Crimes in Places within Exclusive Federal Jurisdiction. As Congress is given exclusive power of legislation over the District of Columbia and " places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings (Const. Art. I, § 8, IT 17); it may provide for the punishment of all crimes committed within such district or within such places, as fully as a state may provide for the punishment of crimes within its own limits. Congress has therefore adopted a general criminal code for the definition and punishment of offences within such district and places. Even though the states may retain the right to issue criminal process into such places they have no authority to punish crimes committed there, for the jurisdiction of the United States is exclusive. (See below, § 107.) 57. Crimes ■within the Territories. So far as territory which is not incorporated into or ad- mitted as a state is concerned, Congress has power to provide for the punishment of crime under the constitutional authority to make " needful rules and regulations respecting the territory and other property belonging to the United States" (Art. IV, § 59] Territorial and Implied. 97 § 3) H 2). So far as portions of such territory are organized under a territorial government, the power to define and punish crimes is usually conferred by Congress on such territorial' government ; but Congress may still by general legislation make acts within the territories punishable as crimes against the United States. Thus Congress has enacted statutory provisions for the punishment of polygamy within the territories (1862, 1882), although it has no power to provide for the punish- ment of such a crime if committed within the limits of the states, for such matters are subject to state regulation and con- trol under the general police power {Reynolds v. United States^. 58. Implied PoTwer to Define and Punish Crimes. As an incident to the exercise of any of the powers expressly given to the federal government. Congress may provide for the punishment as crimes of acts calculated to interfere with such exercise of its powers. Thus under the power to establish post offices and post roads, Congress has provided for the punishment of a variety of acts calculated to interfere with the safety or efficiency of the postal service ; and under the power to lay and collect taxes, it has provided for the punishment of various acts of fraud or evasion with reference to the payment of import or excise duties. The scope of the federal power to punish crimes against the operations of the government is therefore very extensive, and a general enumeration of the classes of offences defined by Congress in the exercise of its implied powers would be impracticable. 59. Ex Post Facto Law^s ; Bills of Attainder. By the federal constitution Congress is expressly prohibited from passing any bill of attainder or ex post facto law (Art. I, § 9> IT 3) a°d the same prohibition is imposed on the states (Art. I, § 10, T i)- A bill of attainder is a statute imposing criminal punishment without judicial trial upon a person for an act already committed without regard to whether it was by law criminal when done. The Parliament of Great Britain assumed the authority to pass such acts and to inflict the 7 98 Punishment of Crime. [§ 59 punishment thus imposed. In England the term bill of at- tainder was limited to statutes inflicting the death penalty and confiscation of property for acts already done, while similar statutes imposing a less degree of punishment were called bills of pains and penalties. But the general term bills of attainder is understood in this country as meaning a statutory imposition of criminal punishment for an act already committed and with- out any previous trial according to due process of law. It is plain that any such statute would be contrary to the funda- mental conception of due process of law, which in criminal cases necessarily involves a judicial trial before imposition of punishment. In a general sense the term ex posi facto law might be applied to any law retrospective in its operations, but as used in the federal and state constitutions it is interpreted as appli- cable only to retrospective statutes providing for the punish- ment of crimes (^Calder v. Bull). Other retrospective statutes may be valid unless they impair the obligation of contracts or deprive persons of property rights, as will be explained in a later chapter. (See below, § 272.) An ex post facto law, then, within the meaning of the con- stitutional prohibitions, is a law which makes acts criminal which were not criminal when committed, or provides a more severe punishment for criminal acts already committed, or changes the rules of procedure so as to make it more difificult for the person accused of a crime already committed to defend in a prosecution for such crime {Kring v. Missouri, and Cummings v. Missouri). No matter how reprehensible or immoral an act may be when committed, if at that time it is not criminally punishable under the law then existing it can- not subsequently be made punishable by statute ; and no matter how inadequate the punishment provided for an act already committed, the punishment cannot as to that particu- lar act be made made more severe by statute ; and no matter how technical or unreasonable the rules of evidence or the rules of procedure may be, by which one who has committed a crime may be enabled to escape punishment, such defects § 59] Ex Post Facto Laws. 99 in the law cannot as to that particular criminal act be remedied by subsequent legislation. The whole theory of the criminal law is that no one shall be punished thereunder unless in a clear case and in strict compliance with the existing law ; and on the whole such a policy is deemed to be promotive of the general public welfare, although in particular cases it may facilitate the escape from punishment of persons who plainly ought to be punished. CHAPTER XI. PUBLIC PROPERTY; THE EMINENT DOMAIN. 60. References. T. M. Cooley, Constitutional Limitations, ch. xv ; T. M. Cooley, Con- stitutional Law, ch. xvi, § 3; H. C. Black, Constitutional Law, ch. xvi ; J. I. C. Hare, Constitutional Law, chs. xviii, xix, xx; J. Lewis, Eminent Domain (1900); H. E. Mills, Eminent Domain (2d ed., 1888); A. B. Hart, Actual Government (Amer. Citizen Series), ch. xviii; J. B. Thayer, Cases on Constitutional Law, 945-955 ; Kohl v. United States (1875, gi U. S. 367 ; McClain's Cases, 1061 ; Thayer's Cases, 956) ; United States v. Gettysburg Electric Railway Co. (1896, 160 U. S. 668; McClain's Cases, 1065) ; Bauman v. Ross (1897, 167 U. S. 548 ; McClain's Cases, 1059) ; Pumpelly v. Green Bay Co. (1871, 13 Wallace, 166; McClain's Cases, 1050; Thayer's Cases, 1060); Pierce v. Drew (1883, 136 Mass. 75; McClain's Cases, 1055; Thayer's Cases, 1133); Central Bridge Corpora- tion V. City of Lowell (Mass. 1855, 4 Gray, 474; McClain's Cases, 1052) ; Story V. New York Elevated Railroad Co. (1882, 90 N. Y. 122; Thayer's Cases, 1095). 61. Rights of the Government to Acquire and Own Property. A state government or the federal government may, for a variety of purposes, be the owner of property. Although neither has all the attributes of complete sovereignty, yet each is a public corporation, and, as such, recognized in law as capa- ble of acquiring, possessing, and disposing of property as an individual, (i) It may hold such property as a public asset, the proceeds of which, like public moneys reahzed from any other source, are to be used for the public welfare, but as to which the government is not charged with any specific duty. Thus the federal government owns the public lands, to be dis- posed of by direct appropriation, or to be sold and the pro- ceeds turned into the public treasury as the government may see fit ; but appropriation of public lands has been made to various states to be held and disposed of by the states in aid of education, or of the construction of public works, or for like 100 § 6i] Government Property. loi purposes. (2) A sovereign government may also, and neces- sarily must, in carrying out its functions, own property for pub- lic use. Thus a state government will own a capitol building, and various other buildings for asylums, penitentiaries, and the like purposes ; while a municipal corporation, which is in reality a branch or division of the state government, may own a city hall, or school buildings, or municipal works operated for the public benefit, such as waterworks, lighting plants, street railways, and the like. And the federal government owns public buildings in the city of Washington, federal buildings in various cities, forts, arsenals, and navy-yards, military sup- plies of various kinds, and a variety of other property which enables the government to carry on its functions. (3) Prop- erty may be charged with a public use, the title being in the federal or state government, while the benefit inures directly to the people. For example, the public may have or acquire the right to use land for streets or highways, parks, landing places for vessels and similar purposes, and the title to the property thus acquired, or the easement in it in behalf of the public, may be said to be in the government, although the use is not necessary in the discharge of any of its essential func- tions. A manifest distinction must not be overlooked, between the property which is subject to the exercise of the sovereign power of the government, that is, as it may be said, within the juris- diction of the government, and the property which belongs to the government. All private property within the territorial limits, over which the government exercises sovereignty, is within the jurisdiction of the government ; but property belong- ing to the government is, to that extent, excluded from private ownership. Thus when the United States, by treaty with Spain, acquired Porto Rico and the Phihppines, the primary result was to give the government of the United States juris- diction over that territory, as it had already jurisdiction within the former limits of the United States, but the private owner- ship of property within the acquired territory was not thereby affected. Lands which were already subject to private owner- 102 Eminent Domain. [§ 6i ship remained subject to such ownership and did not become the public property of the United States. But the public prop- erty of Spain within the limits covered by the treaty became the public property of the United States ; and land within those limits, not belonging to any person, became a part of the pubHc domain of the United States. Public buildings, forts, public records, and other property already devoted to use in discharging the functions of government became public prop- erty of the United States for like purposes, and the property devoted to the general uses of the people, such as public grounds, highways, and streets, passed to the United States to be held in trust for the people. The nature of state ownership of property and the power which states may exercise with reference to such property is not within the scope of constitutional law. The right to own and control public property is incident to the existence of government and is implied in the creation of the federal and state governments. No special provisions authorizing such ownership and control are found in the state constitutions nor in the federal constitution. It is only with reference to the acquisition of private property for public use that any specific provision is made ; and even without such provision the power of the government to acquire property by purchase for public purposes is assumed and often exercised. Under a fictitious theory of the English law that all title to real property was originally derived from the crown — but in reality as the result of a wise public policy in accordance with which there must be some ownership of all real property — land is said to escheat to the state when the owner dies intes- tate and no one is found entitled to take it by descent. In like manner some kinds of personal property, such as abandoned vessels and stray cattle, are taken possession of by the public authorities ; or the proceeds of such property is required to be paid into the public treasury, subject to be reclaimed within a limited time by the owner, and in the absence of such claim on the part of the owner becomes the property of the state or some division thereof. §62] Nature of the Power. 103 62. The FoTver of Eminent Domain. A necessary incident to the power of government is the right, in the interest of the public, to control private property, even without the consent of the owner ; and this is exercised within the scope of the police power, so that the public health, morals, and welfare will be protected. And as will appear in the discussion of taxation, the owner of private property may be compelled to contribute a portion of it for public purposes. (See below, § 70.) Furthermore, the public welfare or public necessity may even require the destruction of private property. Thus it appears that the owner of property exercises the privi- leges of ownership and possession subject to the paramount sovereign power of the state. The owner of private property holds it also subject to a paramount right in the government to appropriate it to public uses without his consent. In this respect the individual interest should not be allowed to stand as against the sovereign will, exercised for a proper purpose. This paramount right of the government, whether federal or state, to appropriate private property to public use is called the power of eminent domain, which is not to be explained as resulting from any paramount title or reserved estate ; nor as involving the theory that all rights are derived from the government, subject to some restriction or condition that the government may retake the property for public purposes ; but rather on the theory that the public interest is greater than any private interest, and that personal rights must be subjected, so far as necessary, to the public welfare. This is a condition essential to the exist- ence of organized society, and comes about without constitu- tional grant. Various state constitutions and the federal constitution so far recognize the existence of this right on the part of these governments as to provide that it shall be exercised only on making compensation to the owner whose property is taken ; and these are the only specific provisions with reference to the power of eminent domain. Before dis- cussing the constitutional provisions and the various rules 1 04 Eminent Domain. [§ 62 which result from their application, it is desirable to indicate more clearly the nature of the power as distinct from other governmental powers with reference to private property. As already suggested, the power of eminent domain is distinguished from the police power in that the latter relates to restrictions on the use of private property in the interest of the public ; while the power of eminent domain is exercised by the taking of private property and devoting it to public use. Thus in the exercise of the police power, the owner of intoxicating liquors, or one who has devoted his property to the business of manufacturing such liquors, may be so far restricted in the sale or manufacture as to greatly impair the value of the property thus owned ; but so long as his property is not taken from him by the government to be used for some public purpose, he cannot say that it has been taken under the power of eminent domain. Again, as will be pointed out in the chapter relating to taxation (see below, ch. xii), while a property owner may be compelled to make contribution for the support of the government or for public purposes to which the government is justified in making contribution, and his property may be seized and sold in order to compel the making of such contributions, yet the exercise of the power of taxation does not necessarily involve the taking of specific property for public use ; and the power of taxation, therefore, while in some respects analogous to the power of eminent domain, especially as to the purposes for which it may be exercised, is nevertheless distinct from it. Nor does the de- struction of private property by the government, or under its authority, involve the exercise of the power of eminent domain. For the purpose of stopping the progress of a fire in a city, the public authorities may destroy buildings, but it cannot properly be said that such destruction is an exercise of the power of eminent domain ; it is simply the result of the dis- charge of a duty arising from necessity. In mihtary operations, private property may be destroyed without the power of eminent domain being at all involved. §64] Constitutional Limitations. 105 63. Constitutional Limitations on Eminent Domain. Coming now to a consideration of the specific constitutional provisions relating to the exercise of the power of eminent do- main, two lines of analysis must be considered, the one relat- ing to the purposes for which the power may be exercised, the other to the compensation which must be made ; for while the specific provisions are only that private property shall not be taken for a public use without just compensation, such a pro- vision is interpreted as meaning that the state or federal gov- ernment shall not take private property for a private use whether with or without compensation. At the outset it is important to notice that while the clause of the federal constitution, "nor shall private property be taken for public use without just compensation" (Amend. V) applies only to the federal government, and makes appli- cable to that government a restriction which is imposed on state governments by their various constitutions, nevertheless, the power of the states in this as in other respects is expressly circumscribed by the provision of the federal constitution, that no state shall deprive any person of his property with- out due process of law (Amend. XIV) ; for it is clear that the taking of property under a pretended exercise of the power of eminent domain, but for a purpose not public, would be a violation of fundamental property rights. The guaranty of the Fourteenth Amendment as to equal protection of the laws has no very direct application to the exercise of the power of eminent domain by the states, for in the nature of things the taking of specific property for pubhc use cannot be in accordance with any rule of uniformity. Equality of burden in this respect is secured by the provision requiring just com- pensation to be made. 64. What is a Public Purpose. As has already been suggested, although there is no direct prohibition of the taking by state or federal authorities of pri- vate property for other than public use, such a taking would io6 Eminent Domain. [§64 be contrary to the principles of constitutional government, and prohibited by the provision as to due process of law, so that the question, What is a public purpose, is fundamental ; and if it appears that the purpose of the taking is not a public pur- pose, the attempt of the government to take will be futile. The purposes which have been held to be sufficiently public are those for which the state or the federal government may own property to be used in a discharge of its public functions, or to be held as charged with a public use. Thus private property may be taken to furnish sites for public buildings, to provide for streets and highvvays, parks and other public grounds, to provide the sources and channels for water sup- plies for cities ; to provide cemeteries in which the dead may be buried ; to provide outlets for the drainage of swamps which should be drained or otherwise cared for in the protec- tion of the public health ; to provide wharves and landing places necessary for the public use in connection with navi- gable waters ; to facilitate the improvement of streams by locks and dams so as to promote public navigation. All these and many others analogous to them are purposes for which private property may be appropriated under the power of eminent domain. So the federal government may take land for post- offices and other buildings, for forts, arsenals, and navy yards and for other uses of that government {Kohl v. United States) . Cities, counties, school districts, and other municipal and quasi-municipal corporations which exercise by delegation some of the powers of government requiring the use of pro- perty, may be authorized to take under the power of eminent domain ; and such public corporations may be authorized to carry on operations such as supplying water or light or trans- portation for which private property may be necessary and may be justly appropriated in proper proceedings. Indeed, it may be safely said, that anything which the government or any of its branches is authorized to do requiring the use of property affords proper occasion for the exercise of the power of emi- nent domain. But the government may exercise some of its functions and § 64] What is a Public Purpose. 1 07 secure to the public some of the benefits to which the people are reasonably entitled, by delegating authority to private or corporate agencies. Thus the government may properly fur- nish facilities for transportation of person or property, and in doing so, it may establish and improve streets and highways ; but it may authorize means of transportation, as by railways, ferries, canals, and the like, to be provided by private persons or by corporations, immediately for their own profit but ulti- mately for the public good. So cities, instead of directly sup- plying water and light to their inhabitants, may be authorized to grant franchises for waterworks and lighting plants, to cor- porations which derive revenue from furnishing to the public faciUties which the municipal government might directly furnish if the legislature should so provide. It is with reference to these public utility corporations, as they may be called, that the greatest difficulty has been experienced in determining the ex- tent to which the government may go in authorizing the taking of private property for public uses ; but it may be regarded as reasonably well settled that if the government authorizes a private person or corporation to render services to the public which the government might render for itself if it saw fit so to do, it may confer upon such person or corporation the power to take private property without the owner's consent on making compensation, so far as reasonably necessary to the performance of the public functions thus delegated. Accordingly it is now well settled that railroad companies may be authorized to take land for right of way, depot grounds, and other necessary pur- poses (^Cherokee Nation v. Kansas R. Co.) ; that telegraph companies may by proper proceedings acquire the right to construct lines through private property ; that one who desires to establish a public ferry across a river may be authorized to condemn such land as is necessary for landing places on the op- posite sides of the stream ; that a corporation desiring to erect a toll-bridge may be authorized to condemn land required for abutments and piers ; that a corporation authorized to furnish water to the residents of a city may be empowered to condemn the land essential for establishing its plant and laying its pipes. io8 Eminent Domain. [§64 The taking of private property for the utihzation and im- provement of water power is also regarded as a purpose for which private property may be condemned. Thus a person having acquired the right to construct a dam across a stream to secure power for the operation of a mill or other manufac- turing purpose may by condemnation acquire the right to flood the lands of private owners by thus damming the stream {Pompelly v. Green Bay Co.) The right to thus practically confiscate private property in order to utilize water power for private purposes rests on peculiar grounds. It can hardly be said that the purpose is public in any sense, and yet, if water power is a public resource of which individuals may be allowed to avail themselves, it is perhaps not unreasonable to say that they may be permitted to damage the property of other in- dividuals, on making just compensation, as far as is necessary to render such water power available. As distinct from these uses which are clearly public in their nature, other uses incidentally advantageous to the public but primarily for individual benefit have been held to be private uses for which property cannot be taken without the con- sent of the owner. The establishment of a manufactory may be incidentally of public benefit to those living in a particular locality, but the property devoted to such use nevertheless re- mains private property and the purpose is not one justifying a compulsory taking. It is to be noted that in all the cases where individuals or private corporations are authorized to condemn private property for their uses, the nature of the business which they are to carry on involves appropriation of specific property so peculiarly situated with reference to the undertaking that other like property could not be substituted for it ; and there- fore, if the individual or corporation could not compel the owners of such specific property to allow its appropriation, the enterprise might be defeated by the unreasonable demands of such private owners. There are many other uses to some extent public for which private property cannot be taken be- cause the enterprise does not necessarily involve the use of § 65] Kind of Property Taken. 109 one piece of property rather than another. But after all, these considerations affect more directly the expediency of authoriz- ing private individuals or corporations to take the property of others, and it may, perhaps, safely be said that conceding the purpose to be public, the question whether an individual or corporation shall be allowed to condemn private property for such purposes is a matter of legislative discretion. Another illustration of what may properly be deemed a public purpose is furnished by cases involving the right to establish private roads. As a general proposition, lands may be taken on which to locate public highways ; while on the contrary a mere right of way by which the individual is bene- fited is not such a purpose. But in order to operate coal mines, stone quarries, oil and gas wells, and other like works for making available the natural resources of particular por- tions of the earth's surface, it is necessary that an outlet be secured to highways, railways, navigable streams, or other pub- lic avenues of transportation. Therefore a roadway or rail- way or canal or pipe line specifically intended to furnish necessary facilities to the individual or corporation operating the mine, quarry, or well, while it is primarily for his benefit, nevertheless may be for a public purpose to such an extent that the right to pass over or through private property may be taken therefor. 65. Kind of Property Taken ; Ezteut of the Right Acquired. The illustrations used in the preceding paragraph have all related to the taking of land ; but there is nothing in the constitutional provisions on the subject which would limit the power of eminent domain to the taking of real property. No doubt personal property might be taken under the same restrictions, but the necessity for taking or authorizing the taking of personal property will seldom arise, since in most cases the personal property of one owner will be no more essential than that of another owner ; and such property, as far as needed, can be secured by purchase from some owner no Eminent Domain. [§65 willing to sell for a reasonable price, and the necessity for condemnation of the property of an unwilling owner will not arise. But in reference to real property which is of such peculiar nature that different parcels or portions thereof can- not be regarded as necessarily interchangeable or capable of substitution, there may still be a question as to the nature of the interest therein or the extent of the use thereof which may be appropriated. For some purposes the entire, permanent, and exclusive ownership may be necessary and the fee title may be taken, compensation on the basis of the entire value of the property being required to be made. Thus if a state or a city were condemning land to be used as the site of a public building, the state or city would necessarily acquire the complete owner- ship of the land taken and must pay damages accordingly; but for public highways, and for the right of way for railways, the use and occupancy of the surface is all that is essential, and it may properly be provided that such use only shall be condemned, and compensation for such use paid, leaving in the original owner of the land the right to any beneficial en- joyment of it and especially of coal or mineral rights under it which he may be able to make without interfering with the easement, as it is called, which is taken over the land for public purposes. The city may be authorized in condemning land for streets to take either the fee or an easement as the legislature in its discretion may provide. The distinction between the taking of the fee and of an easement becomes important in considering the use which may be subsequently made of the right condemned. Thus where an easement over lands is condemned for use as a high- way, leaving the title in the owner for every purpose not in- consistent with the public use for highway purposes, a railway company cannot be authorized, without payment of additional compensation, to locate its track and operate its road in such highway, because this is a further infringement on the rights of the property owner for which he has not received compen- sation ; inasmuch as his compensation when the highway was § 65] Kind of Property Taken. 1 1 1 located was determined with reference to the use of his prop- erty as a highway, and not for some other public purpose. Likewise, it might well be urged that telegraph or telephone lines could not be established along such highways without additional compensation to the property owner (^Pierce v. Drew) . The use involved in the establishment of city streets over private property is a more extensive use than that in- volved in the establishment of an ordinary highway, and may well be considered as including the construction and opera- tion of telegraph and telephone lines, street railways, grading, curbing, paving, sewering, and other forms of public improve- ments usually incident to the public enjoyment of city streets. The nature and extent of the right acquired by condemnation will depend largely upon the statutory provisions under which condemnation has been made. As a general rule, the appropriation of land to one public use precludes its subsequent appropriation to another and inconsistent public use. When the state has condemned land for its use in -connection with public buildings, either as fur- nishing the site therefor or the necessary surrounding grounds, the same land cannot be taken a second time by a city for a park, or by a school district for school purposes. Such mat- ters are, after all, in the discretion of the legislative power (U. S. V. Gettysburg Electric R. Co.). A limitation of more practical importance is that a railway company, having the general authority to condemn land for right of way, cannot without direct legislative sanction exercise the power of eminent domain for the purpose of acquiring a right of way over land already appropriated for pubhc use under the au- thority of the state. In like manner one railway company can- not, under its general power to condemn, take the right of way of another railway company, and yet the legislature has the authority to provide for one railway crossing the right of way of another, or that when any one railway has abandoned the use of its right of way, it may be condemned for the use of another. As between the federal government and a state government, 112 Eminent Domain. [§ 66 neither one can authorize the condemnation for public use of land which has already been acquired either by condemnation or purchase by the other for its public uses. Possibly the United States government could not, by any action of the state, be excluded from appropriating state property for federal purposes ; but such questions are not likely to arise, for it is hardly conceivable that the federal government should find it expedient and necessary to interfere with any state in the enjoyment and discharge of its public rights and duties. An individual or corporation which has under proper authority condemned land for public uses, though for private benefit, has a property right in the land thus acquired ; but this private right is still subject to be taken for other public uses if the legislature shall so provide. Thus a company which has constructed a toll bridge across a stream and has acquired nec- essary land for that purpose, has a property right in maintain- ing such toll bridge, and deriving the profits incident thereto; but under legislative authority, such property might be taken for the construction of a public bridge, due compensation being made to the company (^Central Bridge Corp. v. Lowell). Public corporations, however, do not have a vested right which the legislature may not take away without making compensation to them, for all their rights and privileges are derived from and subject to the control of the legislative power. Questions of this kind, however, arise more frequently under the consti- tutional provision as to impairing the obligation of a contract, and the extent to which corporate franchises either pubhc or private may be impaired by legislation will be discussed else- where. (See below, § 269.) 66. Compensation for Property Taken by Eminent Domain. No doubt it is in accordance with ordinary conceptions of right and justice that if the property of an individual be appro- priated by the state for the benefit of the general public, com- pensation should be made to the one whose property is appropriated. Thus while the burden of providing for the public welfare would be thrown on a particular person, yet as § 66] Compensation. 1 1 3 the money to be paid is raised by taxation, bearing alike on all taxpayers, the burden is equalized. It is doubtful, however, whether in the absence of express constitutional provision, any legislature would be bound, in making provision for the exer- cise of the power of eminent domain, to provide that compen- sation must be paid. Such provision would be likely to be made as in accordance with public policy and expediency, but it does not necessarily follow that the exercise of the power of eminent domain, as one of the powers incident to government, would be a violation of the protection of property involved in the constitutional requirement of " due process of law," even though no compensation was provided for. This, however, is a matter of purely speculative interest, for the state constitutions practically without exception contain the requirement that just compensation shall be made as a condition of the exercise of the power of eminent domain, and the federal constitution (Amend. V) contains the same provision, which as already stated applies only to the federal government. It might, per- haps, be open to argument, whether the attempt on the part of a state to take private property for public use without just com- pensation was a violation of the guaranty found in Amendment XIV to the constitution, which is expressly applicable to the states, but- no such question is likely to arise. The cases decided by the federal Supreme Court with reference to the power of the state legislatures in the exercise of the right of eminent domain, have almost uniformly been determined with reference to provisions of the state constitutions, except where the question has been as to the exercise of such power by the federal government. The requirement that just compensation be made is easily applied where the entire right and title to a distinct parcel of property, such as a certain tract of land owned and used inde- pendently of and without relation to other property of the same owner, is taken under the power of eminent domain. In such case, the compensation is the value of the property taken, esti- mated on the same basis as if disposed of for any other purpose, and in estimating such value it would be immaterial to consider 114 Eminent Domain. [§66 whether some incidental benefit accrued to the owner from the public use to which the land taken was appropriated. If it is beneficial to the people of a community to have a public build- ing erected in their midst, or a park established, or a railway constructed and operated, such benefit is common to many persons, and the fact that the owner of the land taken for such use is benefited thereby cannot well be considered for the pur- pose of decreasing the amount of compensation which he should receive for his land. Nor on the other hand, should the compensation be affected by an increase in the value of the land which would have resulted in benefit to the owner had the pubUc improvement been made without the appropriation of his land. Just compensation will be the value of his land as it was before and without regard to the proposed public improve- ment. In some states there is an express provision that in estimating the compensation, presumptive benefits to the owner of the land shall not be considered. Thus by way of illustration, if the same individual owned two tracts of land possessed and used by him independently of each other, and if one tract should be taken for a public use, the fact that the other tract was thereby increased in value should not be taken into account as an offset to the compensation which he ought to receive for the tract taken, nor would it be competent to fix the value of the tract taken with reference to any advantage which would have beneficially affected its price had the public improvement been made without such tract being taken. The measure of compensation becomes more difficult of determination where the thing taken is only an easement, that is, a right to a limited use of the land, as a right of way for a public highway or railroad ; or where only a portion of a tract or one of several tracts used together for one purpose is taken. With reference to public highways and railroad rights of way, it is usually provided that the public or the railroad company, as the case may be, shall acquire only an easement, that is, a right to such use of the land taken as may be necessary for the purpose, leaving the owner still vested with the title, subject to the pub- lic use, and authorized to enjoy the land in any way consistent § 66] Compensation. 115 with the public use. Thus the owner of a strip of land taken for a public highway might, no doubt, take out coal or mineral from under such strip, provided that in doing so he did not interfere with the necessary support of the surface, and com- pensation should be made to him, not for the value of the strip, but the detriment he would suffer to its use for the designated purpose. When only an easement is being taken for a public use, it has been argued that possibly the benefit resulting to the owner with reference to his residuary right in the land thus subjected to an easement might be considered as lessening the damage to which he is entitled. But such a question could scarcely arise, for the residuary right would seldom be of such nature as to be susceptible of any benefit by reason of the establishment of an easement in it. More serious difficulty is encountered when the right taken for a public use is only that of an easement in a portion of a tract of land, or a portion of one of several tracts, owned and used for a single purpose. Thus if a highway or railway is located through a tract of land used as a farm, is the owner of the farm entitled, by way of compensation, to damages sus- tained as to the entire farm, or only to the damage which he suffers as to the particular strip of land which is thus appro- priated? And on the other hand, if his damages are to be computed with reference to the injury to his entire farm, may the benefits accruing to his farm, by reason of the location of the highway or railway, be taken into account? In at- tempting to answer the first of these questions, it must be borne in mind that the ordinary constitutional provision, re- quiring just compensation to be made, applies only to the person whose land is taken. The location or operation of a railway in close proximity to a man's land, occupied by him for a farm or residence or a like purpose, may be seriously detrimental, but it does not follow that under any constitu- tional provision he is entitled to compensation for such injury. The owner of land owns it subject to the contingency that he may be injuriously as well as beneficially affected by the lawful Vise of neighboring property. He may justly complain of a ii6 Eminent Domain. [§66 nuisance, that is, an unlawful use of other property which is peculiarly injurious to him ; but a highway or railway or schoolhouse is not a nuisance in itself, and he must endure any discomfort or inconvenience which results. Thus one who has a dwelling upon a public street may be inconven- ienced in the use of his premises or injured by depreciation thereof by reason of the location of a street railway along such street, but if the use of the street is lawful, he cannot say that he is entitled to damages. Much less can he contend that any property of his has been taken for public use without just compensation. It could, therefore, be reasonably argued, that where a strip of land is taken for a railroad right of way through a man's farm, he is entitled only to the depreciation in value of such strip due to its being appropriated for a right of way, and not to any compensation for depreciation in value of the remainder of his land. But it is usual to provide, at least with reference to the taking of a right of way for a railway, that all the damages suffered by the land owner, a portion of whose land is thus taken, shall be allowed to him ; and as a railroad company can exercise the power of eminent domain only under such conditions as may be imposed by the legislature, such provision, even if it allows to the land owner greater damages than he is entitled to under the letter of the con- stitution, will be entirely valid. Statutory provisions as to the compensation to be paid are usually given a somewhat liberal construction, and the land owner can generally get a compensation based upon an estimation of the injury to his entire premises, resulting from the taking of a portion thereof for a public purpose. As the injury to the portion of the premises not taken does not fall within the constitutional re- quirement of just compensation, it may be that as against such injury the benefit to the remainder of the premises resulting from the public improvement can be taken into account by way of offset ; but this must depend rather on the construction of the statute than on any constitutional provision (^Bauman V. Ross). § 67] Method of Procedure. 1 1 7 Some state constitutions contain broader provisions than those above referred .to, and require that just compensation be made, not only to those whose property is taken, but also to those whose property is damaged by reason of the ap- propriation of private property to public use. Especially interesting questions have arisen out of the construction of elevated railways in city streets, as to the right of the owners of property abutting upon the streets to have compensa- tion for damages to their property, resulting from such con- struction ; but the questions which have arisen in such cases depend for solution to so great an extent upon statutory pro- visions that no general rule can safely be announced. (See Story V. New York Elevated R. Co.) It must be constantly borne in mind that private property owners will frequently suffer inju- ries from the exercise of proper public authority for which they cannot, under any constitutional provision, secure redress. 67. Method of Procedure in Eminent Domain. It is for the legislature to determine, in its discretion, the propriety of exercising the power of eminent domain in cases in which it may constitutionally be exercised ; that is to say, the legislature determines by statute, either general or special, in what cases private property may be taken for a public use, subject, however, to the supervision of the courts, which have the final power to decide whether or not the use is in such sense public that private property may be condemned for that purpose. Thus, conceding that land may be constitutionally taken for a public park, it is for the legislature to provide by statute how and under what circumstances this shall be done. If it makes no provision for public parks, then private property cannot be taken for such purpose ; if it does provide for such taking, then the method prescribed by the statute must be fol- lowed. Indeed, the determination by the legislature that any specified purpose is a public purpose for which private prop- erty may be taken, is prima facie valid, and the courts will not override the judgment of the legislature in that matter except in a clear case. 1 1 8 Eminent Domain. [§ 67 The legislature must also provide some method of ascertain- ing the just compensation required by the usual constitutional provision and enforcing its payment; else the attempt to confer authority to take will be ineffectual on account of the constitutional limitation ; but in general, the method to be pursued is discretionary with the legislature. Judicial proceedings for the condemnation of property are required in some states ; but the constitutional requirement as to due process of law does not necessitate an action in court to determine the amount of the damage to be paid in order that just compensation shall be made. It is usual to provide for the selection, by the sheriff or some other ministerial offi- cer, of appraisers or commissioners to view the premises and report the amount which the owner shall receive for his prop- erty taken, and the damage suffered by him in case he is entitled to any damages beyond the value of the property taken. It is, however, further provided in many if not all of the states in which it is not required that the original proceed- ing be in a court, that there may be an appeal from the find- ing of the appraisers or commissioners to a court, in which the question as to the amount to be paid shall be judicially determined. In many states it is specifically required that the compensation thus determined be paid before the property is taken. Where this is not required by the constitution, it is usually required by statute, unless it may be in cases where the property is taken directly for the use of the state or a public corporation. CHAPTER XII. TAXATION. 68. References. In General: T. M. Cooley, Constitutional Limitations, ch. xiv; J. Story, Constitution, ch. xiv ; T. M. Cooley, Constitutional Law, ch. iv, § I ; T. M. Cooley, Taxation ; H. C. Black, Constitutional Law, ch. xv; J. I. C. Hare, Constitutional Law, chs. xv, xvi, xvii; The Federalist, Nos. 12, 21, 30-36; J. N. Pomeroy, Constitutional Law, §§ 271-312 A. B. Hart, Actual Government (Amer. Citizen Series) ch. xxi ; D. R. Dewey, Financial History of the United States (Amer. Citizen Series), passim. Public Purposes: Loan Association v. Topeka (1874, 20 Wallace, 655 ; McClain's Cases, 189; Thayer's Cases, 1235) ; Kingman v. City of Brock- ton (1891, 153 Mass. 255; McClain's Cases, 195; Thayer's Cases, 1029); Lowell V. City of Boston (1873, m Mass. 454; Thayer's Cases, 1224); North Dakota v. Nelson County (1890, i N. Dak. 88 ; Thayer's Cases, 1242) ; Deering v. Peterson (i8gS, 75 Minn. 118; McClain's Cases, 201) ; State V. Osawkee Township (1875, 14 Kansas, 418) ; Wurts v. Hoagland (1885, 114 U. S. 606; McClain's Cases, 203; Thayer's Cases, 768); Perry v. Keen (1876, 56 N. H. 514; Thayer's Cases, 1247); Railroad Company V. Otoe (1873, 16 Wallace, 667; Thayer's Cases, 1256). Subjects of Taxation: State Tax on Foreign-Held Bonds (1872, 15 Wallace, 300; McClain's Cases, 136; Thayer's Cases, 1258); Murray V. Charleston (1877,96 U. S. 432; McClain's Cases, 1002J ; ICirtland y. Hotchkiss (1879, i°° U. S. 491; McClain's Cases, 142; Thayer's Cases, 1268) ; New Orleans v. Stempel (1899, 175 U. S. 309) ; Savings &' Loan Society v. Multnomah County ( 1898, 169 U. S. 421 ; McClain's Cases, 146). Taxation of Government Agencies: The Collector v. Day (1870, II Wallace, 113; McClain's Cases, 153; Thayer's Cases, 1378) ; Dobbins V. Commissioners (1842, 16 Peters, 435 ; Thayer's Cases, 1352) ; McCulloch V. Maryland ( 1819, 4 Wheaton, 316 ; 4 Curtis' Decisions, 41 5 ; McClain's Cases, I ; Thayer's Cases, 1340 ; Marshall's Decisions, Dillon's ed., 252) ; United States v. Railroad Company (1873, '7 Wallace, 322; Mc- Clain's Cases, 158); Railroad Company v. Peniston (1873, 18 Wallace, 5; Thayer's Cases, 1833; McClain's Cases, 166); Thomson v. Pacific Railroad (1869, 9 Wallace, 579; McClain's Cases, 162; Thayer's Cases, 1369) ; California v. Central Pacific R. R. Co. (1887, 127 U. S. i ; McClain's Cases, 167 ; Thayer's Cases, 1394) ; Bank of Commerce v. New York City (1862, 2 Black, 620; McClain's Cases, 170; Thayer's Cases, 1357); 119 1 20 Taxation. [§ 69 Bankv. Supervisors (i?i6%,T'^a\\!iCe, 26; McClain's Cases, 175; Thayer's Cases, 1351) ; Wisconsin Central R. K. Co. v. Price County (1890, 133 U. S. 496; McClain's Cases, 178; Thayer's Cases, 1397). Methods; Uniformity: Kentucky Railroad Tax Cases (1885, 115 U. S. 321; McClain's Cases, 205); Kelly-/. Pittsburg (1881, 104 U. S. 78 ; McClain's Cases, 211; Thayer's Cases, 1 197) ; French v. Asphalt Co. (1901, 181 U. S. 324) ; Veazie v. Fenno (1869, 8 Wallace, 533; McClain's Cases, 222 ; Thayer's Cases, 1334)- Commerce with Territorial Possessions : Insular Cases, De Lima v. Bidwell (1901, 182 U. S. i) ; Downes v. Bidwell (1901, 182 U. S. 244) ; Dooley v. United States (1901, 183 U. S. 151) ; Fourteen Diamond Rings \. United States (1901, 183 U. S. 176). Direct Taxation by Federal Government : Income Tax Case, Pollock V. Farmers' Loan &■ Trust Co. (1895, '57 U. S. 429, 158 U. S. 601; McClain's Cases, 223). 69. General Powrers of Taxation. One of the powers inherent in government is that of raising revenue for the purpose of carrying on its legitimate functions. As the functions of the federal government are limited, so the purposes for which the powers of taxation may be exer- cised by it are limited ; but as all the general powers of government are vested in the different departments of a state government, unless denied to it expressly or by impHcation by the state or federal constitution, so the purposes for which the powers of taxation may be exercised by a state are, .in the nature of things, unlimited, save as specific limitations have been imposed. Nor is it necessary that the state constitution contain any grant of specific power of taxation to any depart- ment of the state government, for that power is inherent in any government having general powers, and is necessarily implied in the creation of such a government. Therefore we do not find in state constitutions the power to tax included in any express enumeration ; but some limitations on or direc- tions as to the exercise of such power are sometimes em- bodied therein. As between the different departments of a state govern- ment, the taxing power belongs to the legislative department. Probably the very first conception of the existence of legisla- tive power as distinguished from executive power, and of a § 69] General Powers. 121 limitation upon executive power, was that involved in the assertion of the right of some forrn of representative as- sembly to vote taxes for the purposes of government, and to exclude the monarch or other ruler exercising executive functions from levying money for the expenses of the gov- ernment otherwise than as provided for and authorized by the representative body. The long contest in England for supremacy, between the king and Parliament, involved more frequently controversies as to the right of the king to raise money otherwise than by parliamentary sanction than the right to exercise any other function of government, and it was finally established, as a principle of the English constitu- tion, that no taxes could be collected save as they were authorized by law — that is, by the action of the legislative branch of the government — and that the moneys thus col- lected should be expended only as authorized by law, that is, in accordance with appropriations made by Parliament. The policy of Parliament in this respect was, and has con- tinued to be, to make appropriations only for a short period, so that the king would be unable to carry on the government for any great length of time without the approval of Parha- ment. This principle is expressed in some of the state con- stitutions and is embodied in the federal constitution (Art. I, § 9) If 7) i" the provision that, "No money shall be drawn from the treasury but in consequence of appropriations made by law ; and a regular statement and account of the receipts and expenditures of all pubUc moneys shall be published from time to time." With reference to the support of armies, es- pecially, has this jealous restriction of the executive power been recognized by the provisions of the state and federal constitutions. It is provided in the federal constitution (Art. I, § 8, f 12) that no appropriation of money for the raising and support of armies, shall be for a longer term than two years. And in order that the power to raise and appropriate money shall be retained within the immediate control of the popular branch of the legislature, it is usually provided in the state constitutions, as it is expressly provided in the federal 122 Taxation. [§ 7° constitution (Art. I, § 7, f i), that bills for raising revenue shall originate in the more numerous branch of the legislative body. But the practice of Congress, and of many of the state legislatures, illustrates more forcibly, even than the con- stitutional provisions, the prevailing conception that the power of taxation belongs peculiarly to that branch of the legisla- tive body which immediately represents the popular will. By custom general appropriation bills, that is, bills for the expen- diture of money for carrying on the government in its various operations, originate in the houses respectively of the state and federal legislative bodies, and such appropriations are usually made for the shortest practicable period, that is, for the term of one Congress or one session of the legislature. 70. State Poiver to Levy Tases. The purposes for which the power of state taxation may be exercised are as limitless in their variety as the special objects for which laws may be passed. Nor is the exercise of such power restricted to the general legislative department of the state government. It may be delegated to subordinate tri- bunals or legislative bodies such as the boards of supervisors of counties, the councils of cities, the trustees of towns or townships or school districts and the like ; and the purposes extend from providing for the general expenses of the state government down to the support of the smallest branches of the local government. An indispensable characteristic, however, of every exercise of the power, whether original or delegated, is that the purpose for which money is raised by taxation be a public purpose, that is, a purpose properly incident to the exercise of the powers of government. The legislature cannot authorize the collection of money to be expended for the private benefit of individuals. Difficult as it may be to determine whether any specific purpose is public, as distinguished from a private pur- pose, that distinction when properly applied will determine whether the money to be expended may properly be raised by means of taxation. It is sometimes said that the levying § 7°] State Power. i 2 3 of taxes for a purpose not public is the taking of private property for private use, or for public use without just com- pensation, and contrary, therefore, to the provisions of the state and federal constitutions regulating the exercise of the power of eminent domain. But the power of eminent domain and the power of taxation are wholly distinct and independent powers. They have this in common : that each of them, in the nature of things, can be exercised for a public purpose only ; and it is sometimes pertinent in determining whether the purpose is one for which the power of taxation can be exercised, to consider whether it is one for which private property may be taken without the consent of the owner. The purposes of taxation may, however, be either general or special. General taxes may be collected to provide a general fund from which the expenses of state, county, or city government may be met, and such purposes are unques- tionably public, so that no controversy can very well arise on that point. Taxes may also be levied for specific purposes, and the validity of such a tax may depend, therefore, on whether the specific purpose is a public purpose. Questions of this character do frequently arise, and their solution is often difficult, but it may safely be stated, as a general proposition, that if the purpose for which a specific tax is levied is not a public purpose, or if an attempt is made to incur a specific indebtedness for a purpose not public, which indebtedness can only be met by taxation, then the specific tax or indebted- ness will be held invalid. The general ground on which such legislation is declared invalid is that it amounts to depriving persons of their property without due process of law ; for the guaranty of due process of law relates not only to the method, but also to the purpose for which private property may be taken under the exercise of the power of government. This phase of the taxing power will be made the subject of con- ■ sideration in a subsequent section. It is pertinent here to observe, however, that though taxes can only be levied for a public purpose where the purpose is express or specific, appropriations of public money are not 124 Taxation. [§ 71 thus limited by any constitutional provision. They should be for a public purpose, but the decision as to what is a public purpose lies largely in the discretion of the legislative depart- ment ; and no citizen has such direct interest in the matter that he can call in question the propriety of appropria- tions made from the general funds. But where the tax is specific, or the statute authorizes the incurring of indebtedness for a specific purpose which can be met only by the raising of money by a special tax, the persons whose property is sub- ject to be taken for raising such tax may usually question the legality of the tax or indebtedness by appealing to the courts. 71. What is a Public Purpose. The general scope of the purposes which are public, and for which, therefore, the power of taxation may be exercised, can best be illustrated by stating some of the purposes which have been held not to be public and for which, therefore, taxes cannot be properly levied. It is well settled that the legisla- ture cannot authorize cities and towns to levy special taxes or contract indebtedness in aid of the estabhshment of manufac- turing enterprises ; for although the establishment of manu- factories may be in one sense beneficial to the public, and especially to the people of the locality where they are estab- lished, nevertheless, as they are private enterprises, the imme- diate benefit of any bonus or appropriation would enure to the owners, while the benefit to the public would be merely incidental (^Loan Associations. Topeka). Of course money might legitimately be raised by taxation or by the incurring of indebtedness for the purpose of establishing municipal works, such as waterworks, lighting plants, and the like, to be owned by the city, for the money would then be used directly for a public purpose. It is also settled that a statute would not be valid which should authorize a city to raise money by borrowing or by taxation, to be loaned to private property owners to enable them to improve their property. In one sense it is to the public benefit that property be improved and business be car- § 7i] What is a Public Purpose. 125 ried on, but this public benefit is incidental only to the private advantage which the property owners would derive from the use of the public money. This was the conclusion reached in the case of Lowell v. City of Boston with reference to a statute in Massachusetts, authorizing the City of Boston, after a large destruction of private property by a great fire, to borrow money for the purpose of loaning it to property owners to enable them to restore the buildings which had been destroyed. For similar reasons it was held by the Supreme Court of Min- nesota in Veering v. Peterson, that statutes providing for the loaning of money by the state to farmers who had suffered from a general drought to enable them to purchase seed with which to carry on their business of farming, were invalid ; for while it is incidentally to the public advantage that the people be enabled to carry on their private enterprises, the immediate benefit of such an arrangement is to the private persons to whom the money is loaned. It is true that taxes may be col- lected and expended for the relief of the poor, but this is regarded as a public rather than a private benefit. The main- tenance of indigent persons, who are unable to earn a living, has always been considered as among the purposes for which, in the exercise of reasonable discretion, public money may be used, and however unwise public charity may be in particular cases, the power to give poor relief cannot well be denied, as not within the scope of the general legislative discretion. On the other hand, there are many purposes for which money may properly be raised and used which are deemed public although incidental private advantage results therefrom. Thus bounties may be given for acts which are deemed advantageous to the public, such as enlistment in the military service, the killing of wild animals, or the like, from which a public advantage arises, although the money is paid to private individuals. Public money may be expended for internal improvements such as the creation or preservation of water power, the construction of canals, and the improvement of the highways; although the benefits of such improvements are not equally enjoyed by all persons. So pubHc money may be raised and expended for 126 Taxation. [§ 71 the construction of levees, drains, and ditches, which promote the safety and health and welfare of great numbers of persons, although it may be that many of those required to pay such taxes are not personally interested in the improvement. (See Wuris V. Hoagland.) The power of the federal government to impose a protective tariff, that is, a tax by which money is raised although the rate of tax and the subjects of taxation are determined to some extent with reference to incidental bene- fits to manufacturers, is upheld on the ground that as the government has a right to raise money by taxes on imports, it may, in its discretion, so adjust those taxes as to foster or benefit particular industries. An interesting example of the exercise of the power to levy taxes or create indebtedness for a public purpose but with incidental private benefits is that of granting public aid in the construction of railroads. Such enterprises are usually organ- ized and carried on by private capital and for private profit ; and yet a railroad when constructed is in some sense a public highway, a work of public improvement. The legislation may regulate the rates to be charged by the railway company, and it may authorize the company to take private property for its right of way, depot grounds, and other necessary purposes with- out the consent of the owner on making him just compensation, in the exercise of the power of eminent domain. Therefore, taxes voted or bonds issued by counties, cities, or towns in aid of a railroad are for a legitimate public purpose, although inci- dentally for the private advantage of those engaged in the enterprise. (See Perry v.Keene and Railroad Co. v. Otoe.) Exemption from taxation in behalf of persons or organiza- tions devoting their property to religious, charitable, or edu- cational purposes rests on substantially the same ground. Exemption of private property owned and used for private benefit is objectionable, because a heavier burden is thereby thrown upon other property, but if the use to which the prop- erty is put is in some sense for the public advantage rather than for private gain, it may be proper to relieve it from the general burden of taxation which rests on other property. § 72] What may be Taxed. 127 Indeed, exemptions have been upheld as to property used for purposes for which taxes could not be properly levied or pub- lic indebtedness incurred. Thus property used for religious purposes is generally exempted from taxation, although the levying of taxes for such purposes would not be authorized. But attempts to grant exemptions to persons using their prop- erty for purely private purposes, even though such use may be incidentally beneficial to the public, have generally been held to be unauthorized. 72. What Property may be Taxed. The subjects of taxation are as various as the purposes for which taxes may be levied, and the largest discretion is allowed to the legislative power in determining the basis on which taxes shall be imposed. Universally those owning property, whether tangible or intangible, are required to pay taxes in some pro- portion in accordance with the value of the property thus owned. Taxes may be levied on real property or personal property, on occupations, on incomes, on inheritances, and on various other rights, benefits, and privileges which are enjoyed under the protection and sanction of organized society. Per capita taxes, usually called poll taxes, are also levied, but it is not usual to attempt to raise any considerable general revenue in that manner. Where it is attempted to levy a tax upon property, the prop- erty must be in some sense within the jurisdiction of the tax- ing power. Thus real property may be taxed in the state within which it is situated, but not in another state. Per- sonal property may be taxed where the owner resides, for property of that character is presumed to be under the posses- sion and control of the owner at the place of his domicile. Thus an individual may be taxed in the state of his residence upon his moneys and credits, including notes, bonds, and other forms of indebtedness which he owns, even though such notes and bonds are secured by mortgage on property situated else- where. On the other hand, personal property may be taxed in the state in which it is actually situated and held, though 128 Taxation. [§72 the owner may reside in another state {New Orleans v. Stempel). This may result in double taxation, that is, in the case of personal property the owner may be taxed on such property where he resides, though the property itself is in another state, and the state in which the property actually is may levy taxes thereon regardless of the fact that the owner lives and is taxed on such property in another state. It is, of course, inequitable that the owner of property should be com- pelled to pay taxes thereon in two distinct jurisdictions, but it is impracticable entirely to avoid such results under present methods of taxation. Double taxation also results from the levying of taxes on real property for its full value in the state where the property is situated, while one to whom the owner owes indebtedness secured by mortgage on the property is also taxed on the notes evidencing such indebtedness and the mortgages given to secure them ; but it seems to be impracticable to avoid such a result without, in some cases, allowing persons to escape taxation on property with which they are justly chargeable. Perfect equal- ity and equity as to the burdens of taxation cannot be attained, and the best that can be done is to adopt such a basis for the levying of taxes and such methods for their collection as shall on the one hand afford necessary public revenue, while on the other they are apportioned as fairly and justly as may be among the persons and property subject to the taxing power. But taxes cannot be imposed upon property which is in no sense within the jurisdiction of the taxing power. If neither the property nor the owner is within the state, then no tax can be imposed by the state. For instance, it has been held in Murray v. Charleston that if municipal bonds are owned by a non-resident of the state, the legislature cannot authorize the municipality issuing and under obligation to pay interest on such bonds to deduct a portion of the interest by way of taxes as against the non-resident owner of the bonds. For similar reasons the state in which is situated real property that is mortgaged to a non-resident cannot require that a part of the interest on the mortgage indebtedness be paid by the debtor §73] Of Government Agencies. 129 to the state by way of tax against the non-resident owner {State Tax on Foreign-Held Bonds) . But there seems to be no legal objection to requiring a non-resident mortgagee to pay taxes on his interest in the mortgaged real property where the prop- erty is situated. (See Savings Society v. Multnomah County.) 73. Tazatiou of Government Officers or Agencies. It results from the peculiarities of our dual government, involving the co-existence within the same territorial limits of federal and state authority, that neither government can tax the property, the agencies, or the instrumentalities of the other. Thus a state cannot tax lands or buildings belonging to the federal government ( Wisconsin Central R. Co. v. Price County), nor can a state, without the permission of the federal government, tax as property the bonds or currency issued by the federal government, though owned by private individuals. It has frequently been said, and the statement is considered to be an axiom, that the power to tax involves the power to de- stroy, and if a state could tax the persons who owned bonds or currency of the federal government, it could thereby make it more difficult for the federal government to borrow money by the issuance of bonds, interfere with its proper regulation and control of the currency, and thus impair its efficiency. Therefore, a bank having a portion of its capital stock invested in United States bonds cannot be directly taxed by the state on the portion of its capital stock thus invested {Bank of Commerce v. New York City) ; but there seems to be no vaUd reason why the owners of shares of stock in a bank should not be taxed on the basis of the value of such shares, though the property of the bank may be to some extent invested in United States bonds. For similar reasons, currency issued by the United States government was held not to be subject to state taxation in the hands of persons holding it; but the statutes of the United States now authorize the taxation of United States currency, the same as other money held by individuals (see Act of 1894), and such consent by the United States removes any objection to such taxation by the states. 9 1 30 Taxation. [§ 73 National bank notes are subject to state taxation under the federal statute which authorizes the creation and operation of the national banks as well as under the statute relating to taxation of treasury notes just referred to. The same reasons which require the exemption of United States property and the bonds and currency issued by the United States from state taxation except by the consent of the federal government, also require that the officers of the federal government shall not be taxed on their salaries by the states in which they reside {The Collector y. Day and Dobbins v. Commissioners^. On the other hand, the federal government cannot impair or interfere with the legitimate operations of the state govern- ments. Therefore, the federal government has no authority to exact an income tax from state officers on the basis of their salaries ; nor to require federal stamps to be placed on the processes of state courts, or on state bonds or warrants, or on the bonds of state officers. Neither government has any power to interfere with the other in the exercise of its legiti- mate functions. Some of the functions of the federal government may be carried on by corporations organized under its authority. Thus in McCulloch v. Maryland it was held that the property of a branch of the United States Bank, chartered by Congress, was exempt from state taxation. Under its authority to regu- late post-offices and post-roads and provide for the carrying on of its necessary operations in the transportation of property and troops, the federal government has also granted charters or franchises ; and it has been held {Pacific Railroad Cases) that the franchises of such corporations, and the property used by them in carrying on the operations authorized by the federal government, are not subject to state taxation. But the fact that a railroad company enjoys a franchise granted to it by the federal government does not necessarily exempt it entirely from taxation by a state in which it carries on its busi- ness. The rule seems to be that such a corporation is exempt from state taxation only so far as it is using its property in the performance of the functions authorized by the federal government. § 74] Due Process of Law. 1 3 1 74. Due Process of Law as to Taxation ; Rule of Uniformity. While the states may exercise a large discretion as to the purposes for which taxes shall be imposed, the property from which they shall be derived, and the methods in which they shall be levied and enforced as against such property, there are limitations in the federal constitution on the exercise of these powers which must always be borne in mind. The provisions of the Fourteenth Amendment to the federal constitution pro- hibiting states from depriving any person of property without due process of law, and from denying to any person the equal protection of the laws, are applicable to taxation as well as to other forms of the exercise of state power. " Due process of law " in this connection means that taxes must be for a public purpose, and imposed and collected in the usual methods ap- plicable to the raising of revenue. These usual methods will be briefly described in a subsequent section of this chapter. But an attempt by the state in any method to exact taxes from persons or property not within its jurisdiction, or for 'a purpose not essentially public in its nature, would be an attempt to take property without due process of law, and therefore unlawful. The state cannot under the pretence of taxation impair funda- mental individual rights to property. It cannot exact money from one person to pay it over to another for purposes which are not public, for this would not be a legitimate exercise of the power of taxation. The very nature of the power to raise money by means of taxation involves the idea of an apportionment of the burden in accordance with some principle of uniformity. Absolute uni- formity is impracticable and it would be equally inexpedient. The legislative power may, in its discretion, adjust the burdens of government so as to make them fall in some measure in accordance with the benefits resulting and the protection af- forded. Different classes of property may be taxed in different methods, and different classes of persons may be required to contribute to the maintenance of government in different ways j 1 3 2 Taxation. [§ 74 and as long as the classifications made are reasonable and gen- eral, they will not be objectionable, though they may result in some measure of inequality. But if the lands of non-residents are taxed on a higher valuation, or at a higher rate than the lands of residents ; or if some persons are required to pay a higher charge for the privilege of pursuing a particular occupation than other persons, the uniform operation of the law required by the Fourteenth Amendment is denied, and the distinctions thus attempted would be invalid. The principle of uniformity requires some correspondence between burdens and benefits. The general advantages of government as to the protection of persons and property con- stitute all the benefits necessary to sustain a general tax applicable to persons and property within the jurisdiction of the state ; but as to municipal taxes and special taxes for im- provements, the question may sometimes be raised whether the person or property taxed is within the benefit of the tax in such sense as to authorize its imposition. Thus general municipal taxes may properly be laid on all property within the municipal limits ; but if it is attempted to bring within the municipal limits agricultural land, which is not in any way benefited by the municipal government, it may well be said that the owner of such property does not belong to the class of persons, and his property does not belong to the class of property, which can properly be subjected to such taxes; and that the tax is not therefore levied according to the principle of uniformity. (See Kelly v. Pittsburg.') Similar considerations apply to special assessments for public improvements, such as the paving of streets, the construction of sewers, and the like. These objects are sufficiently public in their nature to justify a general municipal tax therefor upon all property within the municipality. But property deriving a peculiar advantage from such improvements may properly be required to pay a special tax therefor by reason of such 'special benefit (see French v. Asphalt Co.), and the question often arises whether specific property is justly included within the class of property deemed to be especially benefited, and §75] Specific Limitations. 133 whether the tax is apportioned according to the benefit en- joyed. These are questions to be primarily determined by the taxing power, but it is for the courts to say ultimately, in any particular case, whether the determination reached is reasonably consonant with the requirement of uniformity. License taxes on occupations are a proper means of raising revenue, but they are often imposed as a means of police regulation of occupations or forms of business which are prop- erly subject to such regulation, and as thus imposed, the same restrictions as to uniformity are not applicable as where the object is to raise revenue only. Licenses to sell intoxicating liquors may be restricted to a limited number of persons in the city and refused to others ; or licenses to practice medi- cine or dentistry or pharmacy may be denied to those not having certain qualifications ; or licenses may be exacted from those engaged in certain kinds of business, although not re- quired of those engaged in other kinds of business. An exam- ple of an exaction in the form of a tax which is properly imposed for other reasons than to raise revenue is the federal tax on the currency of state banks. As an exercise of the taxing power, such an exaction could not, perhaps, be justi- fied ; but the power of the federal government to regulate the currency is a sufficient justification for an exaction, the result of which is practically to prevent the issuance of paper money by corporations chartered by a state, and to limit the use of such money to the notes issued by the federal government directly, and national bank notes issued by corporations char- tered under its authority ( Veazie v. Fenno) . 75. Speci&c Limitations on State Po-wer to Tax. Aside from the general limitations resulting from the require- ments of due process of law and equal protection of the laws, the federal constitution contains some specific limitations on the state taxing power. The laying and collection of duties, imposts, and excises is a legitimate method of exercising the power of taxation ; but by the federal constitution authority to raise taxes by this method is specifically conferred on 134 Taxation. [§ i(> the federal government (Art. I, § 8, If i), and while this does not in itself exclude the exercise of like power by the states, nevertheless it is specifically provided that " No state shall without the consent of Congress lay any imposts or duties on imports or exports, except what may be abso- lutely necessary for executing its inspection laws " (Art. I, § TO, IT 2), and that "No state shall without the consent of Congress lay any duty of tonnage'' (Art. I, § 10, ^ 3). These restrictions, while they relate specifically to the state power to tax, seem to be intended to prevent interference by the states with freedom of commercial intercourse. The pro- vision that Congress shall have power " To regulate commerce with foreign nations and among the several states and with the Indian tribes" (Art. I, § 8, ^ 3), has been interpreted also as restricting the levying of state taxes on foreign or interstate commerce. The extent to which this clause restricts state taxation will be considered in the chapter relating to the regu- lation of commerce. (See below, § 92.) The validity of state inspection laws, and of state taxes on boats and vessels, has been the subject of some discussion, but the matter is not of sufficient general importance to justify further elaboration. It is sufficient to say that few attempts have been made by the states to impose taxes for the enforcement of state inspection ; and that taxes on boats and vessels have been sustained where they are reasonably calculated to reach the value of the prop- erty itself, so far as it is within the jurisdiction of the states, the tonnage tax prohibited being considered to be a tax on boats and vessels based upon their capacity rather than their value. 76. Methods of State Tazation. The requirement of due process of law does not necessitate judicial proceedings to determine the amount of tax to be paid by each person and to enforce the tax as against his property. (See Kentucky Railroad Tax Cases. Also see below, § 257.) The usual method of assessment and levy for the purpose of determining the amount of tax to be paid, and of seizure and § 77] State and Federal. 135 sale to enforce such payment, if the tax becomes delinquent, are themselves due process of law. But there must be a pro- cedure of some kind to fix the valuation of the property for the purposes of taxation, and some apportionment of taxes on the basis of such valuation, and the taxpayer must have some kind of notice to enable him to pay before his property is seized. The ordinary public taxes which are based on property owned are usually apportioned by means of an assessment of the value of the property, made by proper officers, for determining the amount belonging to each taxpayer ; and following the assess- ment there is usually a levy made by some proper board or tribunal which determines the amount which each property owner must pay in order that the desired aggregate sum of public money shall be raised. As to the general public taxes which are levied in accordance with law on assessments regu- larly provided for, the law itself constitutes sufficient notice, and the taxpayer is bound to ascertain the sum required of him and pay it within the time required by the general statutes ; but as to special taxes for public improvements and the like, the taxpayer is entitled to some specific notice of the proceed- ing in which it is to be determined whether he or his property is within the class subject to the tax, and of the amount which he is required to pay, so that he shall have opportunity to make payment. On failure to pay either a general or a special tax, the property of the taxpayer may be seized and sold ; but he may by judicial proceedings question the vaHdity of the tax sought to be exacted. 77. Federal Taxation. As the federal government is one of enumerated powers rather than of general powers, we find the power to levy taxes expressly conferred upon Congress in the federal constitution. Perhaps the power to levy taxes for the purpose of carrying out the objects for which the federal government was created would have been necessarily implied without specific provi- sion ; but one of the difficulties attending the form of govern- ment provided for by the Articles of Confederation was that it 136 Taxation. [%77 could not exercise the power of taxing persons or property, but was dependent on contributions from tlie state governments ; and while the Congress of the Confederation could appor- tion among the states the charges of war and of other expenses incurred for the common defence and welfare, no method was provided by which the states could be compelled to raise and turn over to the federal government the sums thus appor- tioned to them. It was to be expected, therefore, that the fraraers of the federal constitution should incorporate therein some specific provision by which the federal government should have this power so essential to its existence. This specific authority is given in the following clause : " The Con- gress shall have power : — To lay and collect taxes, duties, imposts, and excises to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts, and excises shall be uniform through- out the United States" (Art. I, § 8, ^ i). The power to tax for the purpose of raising public money is thus specifically given, and the purposes for which taxes may be levied and collected are as broad as the needs of the government can possibly be, for any public purpose within the scope of the powers given to the federal government would fall within the authority to raise revenue, " To pay the debts and provide for the common defense and general welfare." Within this gen- eral authority, it is for Congress to determine what is a proper purpose and the method and extent of exercising the taxing power. The power to tax thus given to Congress undoubtedly extends in a general way to all persons and property within the jurisdiction of the United States. But the further specifi- cation of the power to lay and collect duties, imposts, and excises, with the concluding limitation that they shall be uni- form throughout the United States, suggests a distinction be- tween such duties, imposts, and excises which are required to be uniform, and direct taxes which, by other provisions, are required to be apportioned among the several states according to population (Art. I, § 2, ^ 3, and § 9, IT 4)- These two forms of federal taxation will therefore be separately considered. § 78] Duties, Imposts, and Excises. 137 78. Duties, Imposts, and Excises. As a matter of practical expediency, the power of federal taxation for the raising of public revenue is exercised almost entirely by the levy and collection of duties, imposts, and excises. These are merely different forms of taxes. " Duties and imposts " cover levies on imports and exports of com- modities ; and the power to levy these, in its discretion, is restricted only by two clauses, the one included in the general provision already quoted that they shall be uniform ; and the other in the clause providing that, " No tax or duty shall be laid on articles exported from any state " (Art. I, § 9, ^ 5). In the exercise of the power to levy and collect duties and im- posts, import duties are levied which are either (i) specific, that is, in accordance with quantity, or (2) ad valorem, that is, in accordance with value, upon very many classes of goods brought from foreign countries ; and from this source a large portion of the revenue of the United States- government is derived. The extent to which this taxing power shall be carried, and the. methods in which it shall be exercised, are peculiarly within the discretion of Congress, and as the states cannot levy taxes on imports or exports, as already in- dicated, this is a source of revenue available only to the United States. The term "excises" applies to taxes laid upon the manu- facture, sale, or consumption of commodities within the country, upon the privilege of pursuing occupations, upon corporate privileges, and the like. The power of levying and collecting such taxes is exercised in a variety of ways. Thus manufac- turers of alcohol and various forms of liquors containing alcohol, and manufacturers of tobacco in various forms, are required to pay taxes on their manufactured products ; sellers of such products, whether at wholesale or retail, are required to pay a license fee for the privilege of carrying on their business ; license fees are also required for the privilege of conducting other forms of business or engaging in specified occupations ; and when specific emergencies have necessitated special rev- 138 Taxation. [§ 78 enues, stamp duties have been imposed on various forms of commercial transactions. Some corporations chartered by the federal government, such as national banks, are required to pay taxes for the privilege of exercising their franchise rights; licenses are exacted from those who employ vessels in foreign commerce under the jurisdiction of the United States, or who engage in the coast trade, or in navigating the navigable waters ; those who make use of the postal facilities afforded by the fed- eral government are required to make compensation therefor as Congress in its discretion shall deem expedient ; and in a variety of other ways persons who enjoy specific benefits from the operation of the federal government are compelled to con- tribute to its support. There seems to be no specific limita- tion on the power of the United States to levy excise taxes ex- cept that already indicated, viz., excises like duties and imposts must be uniform throughout the United States. Since the acquisition by the United States of Porto Rico and the Philippines, serious difficulties have arisen in determining whether the requirement that " all duties, imposts, and excises shall be uniform throughout the United States " (Art. I, § 8, ^ i), prevents the levying of duties on goods brought from such territorial possessions into the ports of the United States. It has been settled in the case of De Lima v. Bidwell and the other insular cases, that since the final acquisition of such territorial possessions by treaty with Spain, they are not foreign territory, and that the ordinary tariff duties on goods brought into the United States from foreign countries are not applicable. This being so, the question is whether special provisions as to tariff duties on goods brought from those islands into the United States are valid under the clause just quoted as to uni- formity. The view which seems to be generally accepted is that the uniformity provided for is uniformity as among the states, that is, throughout the territory of the states which origi- nally constituted the United States, and those states which have since been admitted to the Union; and therefore that the requirement of uniformity does not apply to duties on goods exported from the insular possessions into the United States ; §79] Federal Direct. 139 and accordingly a tariff duty on exports from such insular possessions has been sustained. It would seem clear that the clause prohibiting the levying of duties by the United States on goods exported from any state (Art. I, § 9, IT 5) is not applicable to duties on exports from these insular possessions. In fact, the power of Congress to levy duties on imports and exports to and from such possessions in order to maintain territorial governments, and not to raise revenue for the sup- port of the general government, is not derived from the taxing clause of the federal constitution but by implication from the power to " make all needful rules and regulations respecting the territory or other property belonging to the United States " (Art. IV, § 3, 1[ 2), and is not subject to the rule that duties, imposts, and excises shall be uniform. 79. Direct Taxation by the Federal Government ; Income Tax. While the revenues of the United States have usually been derived almost entirely from duties, imposts, and excises, as to which the rule of uniformity is applicable, the federal govern- ment is not limited to such sources for the raising of revenue. It is within the scope of its taxing power to levy per capita taxes, or direct taxes on property, but such taxes are required to be apportioned among the states in accordance with the population, for it was provided in the federal constitution as originally adopted that, " Representatives and direct taxation shall be apportioned among the several states which may be included within this union, according to their respective num- bers, which shall be determined by adding to the whole number of free persons, including those bound to servitude for a term of years, and excluding Indians not taxed, three-fifths of all other persons " (Art. I, § 2, f 3), and that, " No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be made " (Art. I, § 9, 1 4). The " census or enumeration " referred to in the latter provision has reference to the enumeration provided for in connection with the first provision which furnished a basis 1 40 Taxation. [§ 79 for determining the ratio of representation among the states The apportionment of representation has been changed (Amend. XIV, § 2), so that representatives are now "ap- portioned among the several states according to their re- spective numbers, couating the whole number of persons in each state, excluding Indians not taxed " ; but it still remains true that direct taxes, and also capitation taxes, must be appor- tioned among the states on the same basis as representatives, that is, on the basis of enumeration of the population. There- fore, if the federal government should desire to raise revenue by a capitation tax, it would not be possible for it to do so by exacting, for instance, a fixed sum from each male person over twenty-one years of age within the limits of its jurisdiction ; but it must determine how much each person shall pay by ap- portioning the aggregate amount to be raised among the several states in accordance with their respective populations, as ascer- tained by the census, and then determine how much each per- son of the class of persons required to pay the capitation tax and residing in any particular state must pay in order to make up the total amount of tax apportioned to that state. Likewise, if the United States should desire to raise revenue by a direct tax on real property, it could not tax all the lands within the jurisdiction of the United States on the basis of value, nor on the basis of extent, that is, for instance, at so much per acre ; but it must apportion among the several states in accordance with their population the total amount of the revenue to be raised by taxes upon real property and must then provide the rate at which real property in each of the several states shall be taxed in order to raise in each state the sum apportioned to that state. The inconvenience and difficulty which would attend the levy of capitation and direct taxes in accordance with this method are so great that no successful effort has ever been made or probably ever will be made to raise revenue in this manner, al- though several times attempted. The object of these provisions, however, was evidently not to render such taxes impossible, but to preserve some proportionate relation between representation § 79] Federal Direct. 141 and taxation of this character. The discussion attending the incorporation of these provisions into the federal constitution seems to indicate a purpose to attach to the advantage whicli the states in which slavery existed were given by way of ad- ditional representation on account of including in their enum- eration three-fifths of the slave population, a corresponding burden by way of imposition of a higher proportion of capi- tation and direct taxes. At the time of the adoption of the federal constitution, the elective franchise in states where slavery existed was limited to free white persons, and the result of giving such states representation on the basis of an enumer- ation of population which included three-fifths of the slave population was that the voters in those states had a larger pro- portional representation in Congress than had the voters in states not including any slave population. As capitation and direct taxes have not generally been resorted to as a source of revenue, the states which had the slave population did not actu- ally suffer any detriment to correspond with the increased representation thus given to them ; and since the amendment of the constitution abolishing slavery and apportioning repre- sentation in accordance with actual population, there seems to be no sufficient reason for perpetuating the requirement that capitation and direct taxes shall be apportioned among the states in accordance with population, rather than imposed on all persons and property within the limits of the United States in accordance with the rule of uniformity ; but until the con- stitution shall be amended in this respect, the difficulties attending the levy of capitation and direct taxes must remain. Within comparatively recent years there has been a notable illustration of the practical effect of the provision requiring apportionment of direct taxes. In 1894 Congress provided for a tax on incomes, that is, a tax on individuals graduated on the basis of the income of each. This provision seems to have been adopted in order to supply anticipated deficiencies in import duties to result from a radical change of tariff schedules. But it was held by the Supreme Court of the United States in the Income Tax Case that a tax on incomes 142 Taxation. [§ 79 was in effect a tax on the ownership of the property from which the income was derived ; and that whether this property was realty or personalty, such a tax was a direct tax and could only be levied on the basis of apportionment, and as the statute did not provide for apportionment it was invalid. The de- cision was, not that it was beyond the power of Congress to impose a tax upon incomes, but that such a tax must be dis- tributed by apportionment among the states, and not deter- mined simply on the plan of uniformity throughout the United States. CHAPTER XIII. FINANCIAL POWERS OTHER THAN TAXATION. 80. References. J.Story, Constitution, §§ 1054, 1055, 1116-1121, 1357-1372; T. M. Cooley, Constitutional Law (3d ed.), 64, 90-93 ; H. C. Blackj Con- stitutional Lam (2d ed.), 183-185, 306, 307; J. R. Tucker, Constitution, 508-516, 823-827 ; J. I. C. Hare, Constitutional Law , 198-205 ; The Federal- ist, No. 44; J. B. Thayer, Cases on Constitutional Law, 2197-2199 ; A. B. Hart, Actual Government (Amer. Citizen Series), § 214 ; Craig v. State of Missoicri (l?>2°, 4 Peters, 410; Thayer's Cases, 2199; Marshall's Deci- sions, Dillon's ed., 617) ; Briscoe v. Bank of Kentucky (1837, 11 Peters, 257 ; Thayer's Cases, 2207; iMcClain's Cases, 459); Veazie v. Fenno (1869, 8 Wallace, 533 ; McClain's Cases, 222 ; Thayer's Cases, 1334) ; Legal Tender Case (1884, no U. S. 421; McClain's Cases, 442; Thayer's Cases, 2255) ; Hepburn v. Griswold (1870, 8 Wallace, 603 ; Thayer's Cases, 2222); Legal Tender Cases (1872, 12 Wallace, 457; Thayer's Cases, 2237, and notes, 2267-2273) ; Trebilcock v. Wilson (1871, 12 Wallace, 687; McClain's Cases, 454); Branson v. Rodes (iS(&, y Wallace, 229; Thayer's Cases, 2215) ; Lane v. Oregon (1868, 7 Wallace, 71 ; McClain's Cases, 40). 81. Financial Powers of States. It is within the general scope of legislative power to pro- vide for the borrowing of money for the public use, which is usually done either by the issuance of bonds bearing interest, which may be sold for money, or by issuing warrants, treasury notes, or other evidences of indebtedness which may be used as money or by way of substitutes for money. Warrants are mere evidences of debt and are not intended for circulation, so that they need not be further considered. Treasury notes, or like instruments in the form of due-bills, by which the government promises to pay the amount specified on the face of the bi!l or note, are usually intended, however, to pass from hand to hand as currency and to constitute a part of the cir- 143 144 Financial Powers. [§ 8i culating medium of the country. The states may exercise the power of borrowing money in any of these ways except as forbidden by the provisions of the federal constitution. There is nothing in the constitution to prevent their borrowing money by means of the sale of bonds, nor to prohibit them from issu- ing warrants as mere evidences of indebtedness ; but they are specifically prohibited from emitting bills of credit (Art. I, § lo, T" i), and this prohibition puts it beyond the power of the state to issue due-bills, or paper of any kind intended to pass from hand to hand as or as a substitute for money ; that is, a state cannot, even for the purpose of borrowing money, exercise the sovereign power of emitting paper currency ( Craig V. Missouri). But this prohibition does not interfere with the power of a state to authorize banks to issue bank notes in the form of due-bills or of similar character, intended to pass as currency on the faith and credit of the bank itself, and not of the state which authorizes their issuance. The business of banking is a form of business which the state may regulate and it may authorize the creation of cor- porations to engage in such business. In the case of Briscoe v. Bank of Kentucky it was held that even though the state itself is a stockholder in the bank, the notes issued by the bank and in its own name are not bills of credit of the state. It is entirely possible, therefore, and it was at one time the practice for states to charter banks with authority to issue currency under regulations and restrictions imposed by law. Such currency might properly be called state currency as dis- tinguished from national currency, being issued under author- ity of the state. However, as will appear in the next section, Congress has also authority to provide currency for th« country, and, in the exercise of this sovereign power it may impose restrictions on the exercise of a like power on the part of the states. In the exercise of this sovereign power. Congress has imposed a tax of ten per cent on the currency issued under the authority of a state, and this tax is, as it was intended to be, so severe a burden on the emitting of bills by banks chartered under state authority that state bank currency has § 82] States. 145 wholly gone out of use and been supplanted by currency pro- vided for by the federal government. Such a tax has been held valid in Veazie v. Fenno. By the section of the federal constitution last above referred to, states are also prohibited from coining money or making anything but gold and silver coin a tender in payment of debts ; and it results, that neither coin nor paper money can be emitted by a state, and that practically the entire power of providing for and regulating the making and issuance of money rests with the federal government. 82. Power of Federal Government as to Money. Congress is expressly given by the constitution power to borrow money on the credit of the United States (Art. I, § 8, ^2), and this it may do and frequently has done by the sale of bonds bearing interest, and also by emitting due-bills or promises to pay in the form of treasury notes, or so-called " greenbacks," intended for use as a circulating medium. There is no express provision in the constitution as there was in the Articles of Confederation for emitting bills of credit, but in the practical construction of the constitution it has been thought that the power to emit bills of credit is incident to the power to borrow money and involves the general power ;o regulate the currency, of the country. Congress has the implied power, which it exercised during two considerable periods of its early history, to charter a United States Bank with branches in order to facilitate the financial operations of the government, but under its general powers to regulate the currency and to borrow money, it has more recently provided for the incorporation of a group of national banks with authority to issue currency. This currency consists of the so-called national bank notes, which are promises of the banks to pay, guaranteed by the government itself ; so that, in effect, this currency rests for its security on the credit of the government as well as upon the financial responsibility of the banks issuing it. The government secures itself, as against its guaranty of this paper, by requiring the banks to 146 Financial Powers. [§ 82 deposit with the federal government bonds which the banks are required to buy for that purpose, so that the national bank- ing scheme was originally a means by which the United States borrowed money, although that is not now the ultimate object of conducting the national banking system. One means, and a very important one, of securing the cir- culation of the paper money, or promises to pay, of the United States, was to make such promises to pay a legal tender for the payment of all public and private debts. In the absence of some such statutory provision, only coin would be a legal tender. When "greenbacks" were first provided for in 1862, it was a serious question whether Congress had any authority to make such paper money a legal tender, but it was finally decided in the Legal Tender Cases (1871) that the power to make it a legal tender was incident to the power to emit it, that is, incident to the express power to borrow money and the implied power to issue bills of credit. As stated in the preceding section, the states are prohibited from making any- thing but gold and silver coin a legal tender, but there is no such prohibition with reference to the power of Congress, and its exercise of the power to make its own obligations a legal tender in the payment of debts is now generally conceded. It has been held, however, in Lane County v. Oregon, that Congress cannot make its own obligations a legal tender for the payment of state taxes, for the power to tax is a necessary power of the states, and they may require their own taxes to be paid in whatever manner they see fit. Nor can Congress make legal tender notes receivable in payment of debts which by specific contract are payable in coin {Trebikock v. Wilson and Branson v. Rodes). Congress has also the constitutional power " to coin money, regulate the value thereof, and of foreign coin " (Art. I, § 8, f s). In the exercise of this power. Congress has provided for the coining of various metals into money of different de- nominations, specifying the quantity of metal for each coin. In so doing the federal government does not merely indicate the quantity of each particular metal which is included in the § 82] Money. 147 coin piece, leaving the value to be determined by the current market value of such metal, but in the exercise of its sovereign power, it determines arbitrarily the money value of the coins issued, and by the fact of their issuance, makes them legal tender for their coin value as may be provided by statute, with a limitation as to the aggregate amount for which the minor coins may be used as a legal tender. The power to coin money does not, however, include the power of stamping a merely fictitious value on any material which may be selected for the purpose. It is doubtful whether Congress could, in the exercise of this power, stamp a piece of paper with the words " five dollars" and make such a piece of paper a legal tender for that amount of money. At any rate it has never attempted to do so, and has limited the issuance of legal tender paper money to obligations of the United States to pay money. As pointed out in the chapter relating to taxation (see above, § 73), the states cannot tax the bonds or currency issued by or under the authority of the federal government except as Congress may authorize, and, conversely, the federal govern- ment cannot tax the bonds or warrants issued by or under authority of a state government, because for either to do so would be impossible without interfering with the proper exer- cise of power on the part of the other. CHAPTER XIV. REGULATION OF COMMERCE. 83. References. In General: J. Story, Constitution, §§ 259-263, 1054-1101; T. M. Cooley, Constitutional Limitations, ** 584-594 ; T. M. Cooley, Constitu- tional Law, ch. iv, § 2 ; H. C. Black, Constitutional Law (2d ed.), pp. 186- 207, 368-371 ; J. I. C. Hare, Constitutional Law, chs. xxxi-xxxiii; J. R. Tucker, Constitution, §§ 250-268 ; J. N. Pomeroy, Constitutional Law, §§ 321-384; The Federalist, Nos. 7, 11, 12, 22, 42; Prentice and Egan, Commerce Clause of the Federal Constitution ; A. B. Hart, Actual Gov- ernment (Amer. Citizen Series), chs. xxiv, xxvii; J. B. Thayer, Cases on Constitutional Law, pp. 2090, 2091 ; John Fiske, Critical Period in Amer- ican History, ch. iv. Extent of Federal Power: Gibbons v. Ogden (1824,9 Wheaton, I ; 6 Curtis' Decisions, i; McClain's Cases, 235; Thayer's Cases, 1799, and notes, 1818-1823; Marshall's Decisions, Dillon's ed., 421) ; Hender- son V. Mayor of New York (1875, 92 U. S. 259; McClain's Cases, 244; Thayer's Cases, 1961) ; The Passenger Cases (1848,7 Howard, 283; 17 Curtis' Decisions, 122 ; Thayer's Cases, 1865) ; Pensacola Telegraph Co. V. Western Union Telegraph Co. (1877, 96 U. S. I ; McClain's Cases, 252; Thayer's Cases, 1985) ; Lord v. Steamship Co. (1880, 102 U. S. 541 ; McClain's Cases, 256) ; The Daniel Ball (1870, 10 Wallace, 557 ; McClain's Cases, 260; Thayer's Cases, 1930); LCidd v. Pearson (1883, 128 U. S. i) ; United States v. E. C. Knight Co. (1895, 156 U. S. i ; McClain's Cases, 263; Thayer's Cases, 2185) ; Northern Securities Co. v. United States (1904, 24 Sup. Court Reporter, 436) ; In re Debs (1895, 158 U. S. 164); The Lottery Case (1903, 188 U. S. 321; 23 Sup. Court Reporter, 321). Validity of State Regulations : Willson v. Blackbird Creek Marsh Co. (1829, 2 Peters, 245; 8 Curtis' Decisions, 105; McClain's Cases, 273; Thayer's Cases, 1837); Cooley v. Board of Wardens (1851, 12 Howard, 299 ; 19 Curtis' Decisions, 143 ; McClain's Cases, 275 ; Thayer's Cases, 2191) ; Pennsylvania v. Wheeling &= Belmont Bridge Co. (1855, 18 Howard, 421 ; McClain's Cases, 282 ; Thayer's Cases, 1889) ; Escanaba Co. V. Chicago (1882, 107 U. S. 678; McClain's Cases, 285; Thayer's Cases, 2002) ; Harman v. Chicago (1893, 147 U. S. 396; McClain's Cases, 290; Thayer's Cases, 2011) ; United States v. Rio Grande Dam {jf Irri- gation Co. (1899, 174 U. S. 690; McClain's Cases, 297). 148 § 83] References. 149 State Taxation of Commerce: Brown v. Maryland (1827, 12 Wheaton, 419; 7 Curtis' Decisions, 262 ; McClain's Cases, 303; Thayer's Cases, 1826) ; Welton v. Missouri (1875, 9^ U. S. 275; McClain's Cases, 313; Thayer's Cases, 1957); Robbins \. Shelby County Taxing District (1887, 120 U. S. 489; McClain's Cases, 317 ; Thayer's Cases, 2056) ; Fick- len V. Shelby County Taxing District (1892, 145 U. S. i ; McClain's Cases, 323; Thayer's Cases, 2143); Emert V.Missouri (1895, 156 U. S. 296; McClain's Cases, 324) ; Crtitcher v. Kentucky (iSgi, 141 U. S. 47 ; Mc- Clain's Cases, 328 ; Thayer's Cases, 2135) ; Brown v. Huston (1885, 114 U. S. 622 ; McClain's Cases, 333 ; Thayer's Cases, 2022) ; Telegraph Co. v. Texas (1881, 105 U. S. 460; McClain's Cases, 338); Philadelphia ^^ Southern Steamship Co. v. Pennsylvania (1887, 122 U. S. 326; McClain's Cases, 342 ; Thayer's Cases, 2063) ; Adams Express Co. v. Ohio State Auditor (1897, 165 U. S. 194; McClain's Cases, 349). State Police Power as to Commerce : Railroad Co. v. Fuller (1873, 17 Wallace, 560 ; McClain's Cases, 355) ; Wabash, etc., R. R. Co. v. Illinois (1886, 1 18 U. S. 557 ; Thayer's Cases, 2045); Lake Shore &• Michi- gan Southern Railway Co. v. Ohio (1899, 173 U. S. 285; McClain's Cases, 357); Railroad Co. v. Htisen (1877, 95 U. S. 465; McClain's Cases, 367 ; Thayer's Cases, 753) ; Kimmish v. Ball (i88g, 129 U. S. 217 ; McClain's Cases, 371) ; Brimmer y. Rebman (1891, 138 U. S. 78; McClain's Cases, 373) ; Minnesota v. Barber {1890, 136 U. S. 313 ; Thayer's Cases, 21 12) ; Morgan's Steamship Co. v. Louisiana Board of Health (i886, 118 U. S. 455 ; McClain's Cases, 376 ; Thayer's Cases, 2040) ; Bowman v. Railway Co. (1888, 125 U. S. 465 ; Thayer's Cases, 2080) ; Leisy v. Hardin (1890, 135 U. S. 100; McClain's Cases, 378; Thayer's Cases, 2104); Austin V. Tennessee (1900, 179 U. S. 343; 21 Sup. Court Reporter, 132) ; In re Rahrer (1891, 140 U. S. 545 ; Thayer's Cases, 2123) ; Rhodes v. Iowa (1898, 170 U. S. 414; McClain's Cases, 390) ; Schollenberger v. Pennsyl- vania (1898, 171 U. S. I ; McClain's Cases, 395); Powell v. Pennsylvania (1887, 127 U. S.678; Thayer's Cases, 537) ; Capital City Dairy Co. v. Ohio (1902, 183 U. S. 238; 22 Sup. Court Reporter, 120). Federal or State Taxes on Exports, Imports, and Tonnage : Pace -V. Burgess (1875, 9^ U. S. 372; McClain's Cases, 402); Almy v. California (i860, 24 Howard, 169; McClain's Cases, 404) ; Woodruff v. Farham (1868, 8 Wallace, 123 ; Thayer's Cases, 1922) ; Turner v. j?^ar)/- /a«^ 1(1882, 107 U. S. 38; McClain's Cases, 406 ; Thayer's Cases, 2120); Inman Steamship Co. v. Tinker (1876, 94 U. S. 238; McClain's Cases, 409) ; Packet Company v. Keokuk (1877, 95 U. S. 80; McClain's Cases, 411); Transportation Co. v. Wheeling (1878, 99 U. S. 273; McClain's Cases, 416). Commerce with Indian Tribes: United States v. HolUday (1865, 3 Wallace, 407; McClain's Cases, 270; Thayer's Cases, 1909) ; Cherokee Nation V. Kansas Railway Co. (i8go, 135 U. S. 641 ; McClain's Cases, 1063). 150 Regulation of Commerce. [§85 84. State Power over Commerce in General. The general power to regulate commerce is in strict analysis a part of the police power, and, as has already been indicated in the discussion of the police power (see above, § 48), the states may regulate rates charged by common carriers for the transportation of persons or goods ; and in some states boards of commissioners have been especially created to exercise a particular supervision over railroad, express, telegraph, and other kinds of corporations engaged in business affecting com- merce. Indeed, regulations as to the use of highways, the construction of bridges, the navigation of public waters, and the like, are instances of police regulation principally affecting commerce. Were it not for the limitations upon state power, involved in the provisions in the clause of the federal constitu- tion to be hereafter discussed, which gives Congress certain powers as to the regulation of commerce, there would be no necessity for any separate or particular treatment of this sub- ject, but as the powers of the state are greatly restricted in this respect by that provision it is necessary that the division of powers between the federal government and the govern- ments of the states be considered in some detail. 85. Necessity for Federal Regulation of Commerce. Under the Articles of Confederation, Congress had no power to levy taxes or to regulate commerce ; and, as a consequence, it could not adopt navigation laws, impose duties on imports, or prevent conflicting or retaliatory enactments by the legisla- tures of the different states with respect to trade between the states and foreign countries, or other states of the Union. Each state could, for itself, levy duties on exports or imports, and make such commercial regulations as it saw fit. This situation was inconsistent with any uniform or beneficial reg- ulation of commercial intercourse with foreign countries, and because of division and animosity as between the people of the several states, tended to a disruption of the Confedera- tion. So serious was the condition that the legislature of § 86] State and Federal. 151 Virginia, in 1786, passed a resolution for the appointment of commissioners from that state to confer with like com- missioners from otlier states with reference to the adoption of some more efficient and satisfactory system of commercial regulations. These commissioners were asked to meet at Annapolis, but at the time fixed there were commissioners present from only five states, and the so-called Annapolis con- vention was, therefore, unable to take any efficient action ; but resolutions were adopted recommending action by Con- gress with a view of securing amendments or additions to the Articles of Confederation, and this convention was, therefore, the first formal step towards securing for the Union a bet- ter organization and a more practical constitutional system. When the constitutional convention, subsequently called, met to consider the revision of the Articles of Confederation, or the adoption of some better plan of federal government, one of the first objects which the members had in mind was a uniform system for the regulation of commerce ; and the system adopted involved the grant to Congress of the power to impose duties on imports as a means of raising revenue, and the further power to regulate foreign and interstate com- merce. The provision as to duties on imports has already been discussed under the chapter relating to taxation. The subject of regulation of commerce, as involving the exercise of that power by Congress and the corresponding limitations upon the power of the states, is for this chapter. 86. Frovisions of the Federal Constitution on Commerce. The principal commerce clause of the federal constitution, (Art. I, § 8, f 3), is as follows :, The Congress shall have power " to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." (i) The necessity of such control with reference to foreign commerce is manifold and self-evident. It is essential in determining the relations of the general government to foreign countries, and in exercising supervision over navigation by vessels carrying the flag of the United States on the high seas and other 152 Regulation of Commerce. [§87 public waters; (2) The necessity for federal regulation of interstate commerce arises from the fact that without such regulation freedom of commercial intercourse between resi- dents of the different states on an equal basis would be impossible. (3) Commerce with the Indian tribes should be under the control of Congress, because those tribes are recognized as to some extent independent and self-governing bodies, existing within the limits of the United States, over which the national government asserts a form of protection, although the members of such tribes are not, as individuals, subjects of the United States. As to any forms of commerce not coming within one of these three classifications, the states are allowed to retain the power of control and regulation as effectually as though independent of each other and not subject to federal authority. 87. Concurrent State Power over Commerce. Even as to commerce belonging to any of the three classes specified by the federal constitution, the power of state regu- lation is not necessarily denied. It is to be noticed that Con- gress is not expressly given the exclusive power to regulate, and while the power of Congress is necessarily superior to that of the states, so that any regulations which Congress may adopt will supersede state laws on the same subject, it does not fol- low that state legislation affecting the three forms of commerce enumerated and not in conflict with any laws of Congress on the same subject is necessarily invalid. Thus harbor regula- tions, or rules as to the employment of pilots, may affect foreign or interstate commerce, but they are not on that account in- effectual if there are no statutes of Congress with which they are in conflict. Again, the erection of bridges over navigable streams within state limits, or the construction of dams in such streams, can be authorized by the state, although foreign or interstate commerce is thereby, to some extent, interrupted. There are many local regulations essential for the control of commerce under peculiar circumstances, which cannot very well be provided by general law, and so far as the state regu- § 88] Federal and Concurrent. 153 lations do not interfere with the general law on the subject they are regarded as proper. The fact that state regulations adopted in the exercise of the general police power may incidentally affect foreign com- merce does not render such state regulations necessarily in- valid. If they are not unreasonable, nor calculated to effect a discrimination, and do not in substance amount to general regulations of such commerce as is placed within the control of Congress, they will be upheld. For instance, a state may require locomotive engineers to procure a license, although they are to act for railroads engaged in interstate as well as internal commerce. In the absence of any legislation by Con- gress, this principle would also apply to engineers on vessels navigating the public waters within the state, and also to the inspection of such vessels, but if there is congressional legisla- tion on this subject, any state legislation is thereby superseded. The states can also, without doubt, prohibit the sale of goods dangerous to the public health or morals, even though brought from another state or from a foreign country. As the general police power is left to the states and is not vested in Congress, it is evidently necessary that the states shall exercise it, not only with reference to goods produced in the state, but also as to goods brought into the state from without. 88. What is a Regulation of Commerce. Evidently a careful distinction must be made between state provisions which incidentally affect commerce and those which amount to a regulation of commerce, and this distinction de- pends on the legal definition of commerce. As applied in determining whether a particular act or transaction involves foreign or interstate commerce which is within the control of Congress, or internal commerce which remains within the control of the states, the term has been held to cover the transportation of goods, including the bringing of goods into the state for sale, the transportation of persons into or from the state, the conveyance of messages by telegraph between persons in the state and those in another state or in a foreign 1 54 Regulation of Commerce. [§ 89 country, and, in general, all forms of personal and business intercourse over or across state lines. But the making of contracts is not commerce in this sense. Foreign and interstate commerce is not limited to the mere transportation of goods, persons, or intelligence across the state lines. The whole transaction from the beginning to the end is one continuous act of commerce. If goods are shipped from a point in one state to a point in another state or in a foreign country ; or conversely, if goods are shipped from a point in another state or in a foreign country to a point within the state, the entire transaction is interstate or foreign com- merce, and state regulations are no more applicable to the portion of the transaction which takes place within the state than to that which is outside of the state, or which involves the mere passing of the state line. Thus if a navigable river or lake is entirely within the state limits, nevertheless naviga- tion on such river or lake, so far as it involves the transportation of goods along such channel of communication, is interstate or foreign commerce so far as the goods are brought from without the state to a point of destination in the state, or taken from a point within the state to a point without the state. The same principle is applied to transportation over railroad lines, even though they are operated exclusively within the state, if they constitute a portion of a line of transportation for goods brought into or taken out of the state. The same principles apply to transportation of goods through the state between points in other states. Illustrations of the application of these principles will be found in subsequent sections of this chapter. 89. Freedom of Commercial Intercourse Protected. As has already been said, the power of Congress to regulate foreign and interstate commerce is not in terms exclusive, nor is it construed as excluding state regulation which incidentally affects such commerce, or even directly affects it for local pur- poses, so far as no congressional legislation exists. But the very purpose of the commercial clause in the federal consti- tution was to exclude discriminating restrictions and unneces- §89] Intercourse Protected. 155 sary interference on the part of the states, and it is to be presumed, therefore, that so far as these kinds of commerce are to be subjected to general regulations affecting them, not locally but throughout their entire extent, such regulations must come from Congress and not from the states. It must be assumed that, so far as general regulations are concerned, it is the intention of Congress that commerce shall be unre- stricted save as congressional relations may have been adopted. Thus it has been held in Welton v. Missouri that a state can- not require a license for the selling within the state of goods brought from without, even though the license is imposed likewise on persons selling domestic goods. A so-called license tax on drummers or commercial agents is therefore invalid as applied to such agents soliciting orders of goods from without the state (see Robbins v. Shelby County Taxing District) ; for freedom of intercourse involves the right of per- sons living in other states or in foreign countries to come into the state for the purpose of selling their goods save so far as restrictions may have been interposed by Congress, as, for instance, by the requirement for payment of import duties. On the other hand, the control of persons carrying on busi- ness within the state, not necessarily involving the bringing of goods into the state for sale, is a matter for state regula- tion, and any business carried on within the state which is a proper subject for state taxation or police regulation is under state control. The state may impose a license tax upon tran- sient merchants, or authorize cities to do so, without inter- fering with freedom of commerce, even though such a transient merchant may be selling goods brought from another state ; and it has been held in Etnert v. Missom-i that the business of peddling, being one which is subject to regulation in the exercise of the police power, may be restricted by state statute, although the peddler is actually engaged in the sale of goods brought from without the state. In this connection, it is necessary, however, to bear in mind the provision of the fed- eral constitution that " The citizens of each state shall be enti- tled to all privileges and immunities of citizens in the several 156 Regulation of Commerce. [§90 states" (Art. IV, § 2, 1[ i), and therefore any state law or municipal regulation based on a discrimination between citi- zens of the state and citizens of other states, which excludes citizens of other states from all the privileges in this respect accorded to citizens of the state, and which bears harder on citizens of another state than the state's own citizens, are invalid. (See below, § 190.) Consequently any state legisla- tion which only incidentally affects foreign or interstate com- merce is invalid if it imposes a burden on such commerce as compared with commerce which is wholly within the state. 90. State Restrictions Invalid; Further Illustrations. The principles stated in the preceding sections of this chap- ter can be rendered more intelligible by a brief statement of some of the important questions which have been decided under thera. Soon after the application of steam power to the purpose of propelling vessels, the state of New York granted an exclusive franchise to certain persons to operate steam ves- sels upon waters within the limits of the state ; but the Supreme Court of the United States in Gibbons v. Ogden held this exclu- sive privilege to be invalid so far as it operated to exclude from the Hudson River steam vessels coming from another state ; for although the Hudson River is exclusively within the limits of New York, the state statute amounted to a regulation of navigation on that river, and as navigation is included within the meaning of the term commerce, and as, therefore, vessels coming into the waters of New York from another state were engaged in interstate commerce, the restriction which the state of New York had attempted to make was a restriction of freedom of commercial intercourse among the states. Like- wise a statute of New York, in effect requiring the payment by steamship companies of a per capita tax upon all passen- gers brought into the state, was held invalid in Henderson v. Mayor of New York, because transportation of persons as well as of goods is within the meaning of the term commerce, and the state passenger tax amounted to a restriction on foreign commerce. No doubt the state could take proper measures §9°] State Restrictions Invalid. 157 for excluding persons affected with contagious diseases, or wlio would be likely to become objects of charity, but as Congress has enacted immigration laws covering the whole subject, any state regulation of that character would no doubt now be in- valid, as interfering with specific regulations by Congress. In the proper exercise of its police power, the state may exclude animals having diseases likely to be communicated to other animals, or meat which is unwholesome, but such police regulations must be directly calculated to subserve purposes with reference to which the state can legislate, and not be used as a cloak for regulation of foreign and interstate commerce. Therefore it was held in Railroad Company v. Husen that a statute excluding from a state all cattle brought from another state which may have been subjected to the so-called Texas fever was unconstitutional, because it operated to exclude all the cattle from a certain region without regard to whether they had actually been contaminated with that disease. So in Brimmer v. Rebman it was held that meat inspection statutes, which required that all animals slaughtered for food be inspected while alive within one hundred miles of the place of sale and within a limited time before the meat was offered for sale, were unconstitutional as, in practical effect, preventing the sale within the state of fresh meat from animals slaughtered in another state, regardless of whether such meat was actually unwholesome by reason of diseased condition of the animals slaughtered or the keeping of the meat for an improper length of time after slaughtering. In the exercise of its police power, the state may unquestion- ably regulate or prohibit the sale of intoxicating liquors or cigarettes, but as liquors and tobacco are recognized subjects of commerce, it has been held in Bowman v. Railroad Com- pany that state statutes prohibiting the bringing into the state of such articles of commerce are invalid. The regulation of the sale of such goods after they have been brought into the state is another matter, and will be referred to in the next sec- tion of this chapter. The state may regulate rates of transpor- tation by common carriers, but state statutes regulating such 158 Regulation of Commerce. [§91 rates have been held in Wabash, etc. R. Co. v. Illinois not to be applicable to the transportation of goods or passengers so far as such transportation is a part of interstate or foreign com- merce. The state may, however, make regulations affecting railroads engaged in interstate or foreign commerce, if such regulations do not amount to an unreasonable restriction on such commerce. Thus statutes requiring that signals be given at highway crossings, or that rates of freight and fare be posted for information of the public, have been upheld. (See Rail- road Co. V. Fuller.) 91. Sale of Groods brought into the State. It is evident that commerce would not be substantially free from state interference if the state could impose a license tax on the privilege of selling such goods after they had been brought in, for such a tax imposed specifically with reference to goods which are the subject of foreign or interstate com- merce would be in effect a restriction upon such commerce. Accordingly it was held in an early case in the Supreme Court of the United States {Brown v. Maryland'), that a license tax on the privilege of selling goods which had been imported, and on which duties had been paid in accordance with the provisions of the federal law as to importation, was invalid, and it was suggested that the privilege of importing secured under the law of the United States involved more than merely the right to bring into the state for use, and included also the right to sell without interference of state law so long as the goods had not become mingled with the general property within the jurisdiction of the state. More specifically it was suggested that the importer had the right to sell imported goods in the original packages in which they had been brought into the state, but that this immunity from the application of the state law did not extend to sales other than in the original packages or to sales by persons who had procured the goods in the state from the importer. Subsequently in Leisy v. Hardin the same general rule was applied to goods such as intoxicating liquors brought into § 9'] Goods brought into State. i^g the state from another state, although there was, no par- ticular congressional regulation as to such matter and no duties had been paid to the United States for the privilege of bringing the goods into the state from another state ; for, of course, Congress cannot impose duties on goods taken from one state into another. The so-called " Original Package " rule, therefore, means simply that in the absence of any regu- lation by Congress the state cannot tax or prohibit sales in the original package by the person who has brought the goods into the state from another state or from a foreign country, and that so long as such person continues to hold such goods for sale in the original package, the state cannot impose re- strictions or burdens upon such sale. This rule was the subject of particular discussion in connec- tion with its application to the transportation and sale of in- toxicating liquors in states where prohibitory liquor laws had been adopted ; and the conclusion reached that state liquor laws did not apply to intoxicating liquors sold in the original packages by the person bringing them into the state was regarded by many as peculiarly unfortunate, because it opened the way for the constant violation of the policy of the state laws relating to the regulation of the liquor traffic. This ob- jection has been obviated, so far as intoxicating liq.uors are concerned, by an act of Congress, known as the " Wilson Act," passed in 1890, providing that after intoxicating liquors are brought into any state they shall be subject to the regula- tions of the state law as to their sale ; and since the passage of that act, sales in original packages are subject to the same restrictions as other sales of intoxicating liquors, for in the exercise of its power to regulate interstate and foreign com- merce Congress may undoubtedly subject such commerce to state regulation so far as it may see fit (/« re Rahrer). But the Wilson Act does not subject to state control the transportation of intoxicating liquors into a state ; it re- lates only to their sale after they have reached their des- tination in the state {Rhodes' n. Iowa). The "Original Package " rule still applies to sales of cigarettes, oleomargarine, i6o Regulation of Commerce. [§92 and other articles which are subjects of general commerce, but which come within the scope of the pohce regulations in the various states ; it does not apply, however, to articles such as unwholesome food, infected clothing, devices for counterfeit- ing, and like articles which have no legitimate lawful use and are not properly subjects of commerce. As to such articles, the power of the state to prohibit transportation and sale may be fully exercised (^Kimmish v. Ball). 92. State Taxation of Commerce. The general power of the state to tax all property within its jurisdiction extends to property which, although it has been brought into the state as a subject of foreign or inter- state commerce, is owned in the state or is otherwise subject to its jurisdiction for taxation purposes ; but the state cannot levy taxes on property, which is a subject of interstate or foreign commerce, that is, while it is actually being trans- ported through the state or from a point in the state to some point in another state or a foreign country. The exemption of such property from taxation commences when the trans- portation commences and continues so long as the transporta- tion continues. The mere fact, however, that goods are manufactured or otherwise prepared to be sold outside of the state does not exempt them from state taxation or from state regulations until they have actually become subjects of com- merce by the commencement of transportation to another state or country. {^e.e: Kidd v. Pearson.) On similar reason- ing it has been held that the anti-trust and combination statutes passed by Congress in the exercise of its power to regulate interstate and foreign commerce (Act of 1890, known as the Sherman Act) have no application to trusts and combinations affecting the manufacture of goods in a state, for the reason that such trusts and combinations are subject only to state regulation {United States v. E. C. Knight Company) . But the state taxing power cannot be so exercised as to im- pose specific burdens upon persons or corporations engaged §93] State Taxation. i6i in interstate or foreign commerce. Thus it has been held {^Philadelphia, etc. Steamship Co. v. Pennsylvania^ that a state tax on the gross receipts of a railway company or a steamship line is unconstitutional if a substantial part of such receipts are from interstate or foreign commerce. Likewise a specific tax on a telegraph company based upon its gross receipts for the transmission and delivery of telegrams is unconstitutional if the company is engaged in transmitting messages to or from other states and countries. (See Telegraph Co. v. Texas.^ It is entirely proper, however^ to require corporations engaged in interstate commerce to pay taxes in the state based on the value of their business within its limits, and it may properly be required that a corporation transacting such business in the state shall pay state taxes in accordance with the entire amount or profits of its business in all the states in which it operates, proportioned to the share of that business which is done in the state which levies the tax. (See Adams Express Company v. Ohio State Auditor.) 93. Federal Regulations of Commerce. In the exercise of its power to regulate interstate and foreign commerce, Congress has enacted statutes which need not be here discussed in detail. It has in a variety of ways regulated the commerce on navigable rivers and lakes. It has regulated railroad transportation for the purpose of preventing unjust discrimination in rates as between persons and localities, and has provided (1887) for an interstate commerce commission, having specific duties to perform with reference to the enforce- ment of these laws. It has passed statutes as to immigration and in a variety of ways regulated and exercised supervision over commerce on the high seas either with foreign countries or between ports of the different states. In the further exercise of its powers as to interstate and for- eign commerce. Congress has by the so-called Sherman Act of 1890 prohibited the making of contracts and the formation of trusts and combinations and every other attempt to monopo- lize such commerce, and by a statute of 1898 made provision 1 62 Regulation of Commerce. [ § 93 for settlement of controversies between carriers engaged in such commerce and their employes. As to the Sherman Act it has been decided that while the manufacture of goods to be shipped into another state or abroad is not within the control of Congress {United States v. E. C. Knight Co.) the consoli- dation of competing railroad lines by means of the organiza- tion of a corporation to hold and control the stock of the railroad companies forming such lines so as to completely pool their interests and take away all inducement for competition is an arrangement in restraint of trade and an attempt to form a monopoly, and is invalid {Northern Securities Co. v. United States). Several other important decisions have been ren- dered as to the validity and effect of that statute, but they are all referred to and commented on in the case last above cited. The power of Congress to regulate commerce has been held to extend to the preservation of the navigability of rivers and lakes within state limits, and in the exercise of this power Congress may prohibit the construction of dams or the diver- sion of water, even at points above the head of navigation of a navigable stream, so as to preserve the flow of water in that portion of the stream which is capable of use for the purpose of navigation {United States v. Rio Grande Dam and Irri- gation Co.). In the exercise of its power to regulate commerce with the Indian tribes Congress has prohibited sales of intoxicating liquors to the members of such tribes, and in other ways sought to protect them from impositions or injury at the hands of white persons seeking to take advantage of their helpless condition. And it has been held ( United States v. Holliday) that such statutes may be made applicable to com- mercial transactions between the members of Indian tribes and white persons, whether such transactions take place on Indian reservations or elsewhere. But the control which the federal government may exercise over such commerce as is placed under the regulation of Con- gress is not limited to the enactment of statutes. The federal executive may act, even to the extent of employing the military §93] Federal Regulations. 163 power to prevent unlawful interference with such commerce, as he may in preventing interruption in the carrying of the mails, and injunction suits may be prosecuted under his au- thority to stop any such interference. This power was exer- cised by President Cleveland in 1894 on the occasion of the so-called " Pullman Strike," and was sustained by the Supreme Court in the Debs Case. CHAPTER XV. CORPORATIONS: CREATION AND REGULATION. 94. References. James Kent, Commentaries, Lect. xxxiii ; J. Story, Constitution, §§ 1259- 1271, 1392-139S; T. M. Cooley, Constitutional Limitations, ch. vii and ** 276-284, 575-582; T. M. Cooley, Constitutional Law (3d ed.), 333, 334, 338-342, and ch. xvii; J. R. Tucker, Constitution, 829-836, 863- 865; S. D. Thompson, Commentaries on Corporations, I, chs. i-v, IV, ch. 118; H. O. Taylor, Corporations, chs. i-lv, viii; J. F. Dillon, Munic- ipal Corporations, chs. i-vi ; C. B. Elliott, Private Corporations, chs. i, iv ; C. B. Elliott, Public Corporations, chs. i-iv ; W. L. Clark, Corporations, chs. i, ii, viii; E. Freund, Legal Nature of Corporations (University of Chicago Press, 1896) ; J. P. Davis, Nature of Corporations {Pol. Sci. Quart., XII, 273) ; G. W, Pepper, Introduction to Study of Law of Associations, {Am. Law Register, Vol. XLIX, O. S., 255) ; S. D. Thompson, Abuses of Corporate Privileges (Am. Law Rev., XXVI, 169) ; A. J. Eddy, Combina- tions ; R. T. Ely, Monopolies and Trusts ; F. H. Cooke, Law of Trade and Labor Combinations ; W. W. Cook, Corporations as Affected by Statutes ajtd Constitutions ; E. L. Von Halle, Trusts or Industrial Combinations and Coalitions in the. United States ; T. C. Spelling, Trusts and Monopolies ; A. Stickney, State Control of Trade and Commerce ; Civic Federation, Report of Chicago Trust Conference of i8qg; Industrial Commissiojt Report,No\.l (Government Printing Office, 1900) ; J. W. Burgess, Private Corporations from the Point of View of Political Science {Pol. Sci. Quart., XIII, 201) ; R. C. T)cLvis,yudicial Decisions and Statutes Prohibiting Combinatioit and Trusts, {Quart, four, of Econ., XIV, 416) ; F. J. Goodnow, Trade Combinations at Common Law {Pol. Sci. Quart., XII, 212) ; A. T. Hadley, Difficulties of Public Business Manage?nent {Pol. Sci. Quart., Ill, 572) ; E. Q. Keasbey, New Jersey and the Great Corporations {Harv. Law Rev., XIII, 198, 264) ; E. Q. Keasbey, Jurisdiction over Foreign Corporations { Harv. Law Rev., XII, i) ; F. E. Horack, Organization and Control of Industrial Corpora- tions (1903); A. B. Hart, Actual Government (Amer. Citizen Series) § 209; McCulloch V. Maryland (1819, 4 Wheaton, 316; 4 Curtis' De- cisions, 415; McClain's Cases, i; Thayer's Cases, 271; Marshall's Decisions, Dillon's ed., 252); Munn v. Illinois (1876, 94 U. S. 113; Thayer's Cases, 743; McClain's Cases, 946) ; Trustees of Dartmouth Col- lege V. Woodward (1819, 4 Wheaton, 518; 4 Curtis' Decisions, 463; Thayer's Cases, 1564; McClain's Cases, 1006; Marshall's Decisions, 164 §95] Classes of Corporations. 165 Dillon's ed., 299); East Hartford v. Hartford Bridge Co. (1850, 10 Howard, 511; 18 Curtis' Decisions, 483 ; McClain's Cases, 1021) ; United States V. E. C. Knight Co. (1895, 156 U. S. i ; McClain's Cases, 263; Thayer's Cases, 2185); Northern Securities Co. v. United States {1904, 24 Sup. Court Reporter, 436). 95. Classes of Corporations. A corporation is a collection of individuals authorized by the government to enjoy the privilege of acting as one body, and of being considered as an artificial person, in the owning of property and the enjoying of rights, as distinct from the per- sons composing it. As an artificial person, it has a continuous existence, notwithstanding changes in its membership. This artificial being cannot be created or continued except in pursuance of some authority from the sovereign power. Indi- viduals may contract with each other as to their collective rights and become joint owners of property, may form part- nerships, and in various ways may have, for the time being, a unity of interest ; but the privilege of organizing associations which shall be considered as owning property as units and having rights which are not treated in law as the rights and property of the individuals composing such associations is a privilege which only the sovereign power can confer. In England corporate franchises may be conferred by the crown, but they may be also authorized by act of Parliament, and in this country the creation of corporations is one of the important functions of the legislative department of government. Formerly the legislative power to create a corporation was exercised by the passage of a statute defining the powers of the corporation created, and providing for the method of its organization and management and the exercise of the powers conferred, and this was called its charter. But it is now usual to make general statutory provisions for the organization and the management of the affairs of corporations, and to define the powers which they may exercise, so that individuals desir- ing to associate themselves together into a corporation may do so without special legislation by pursuing the course pointed out by statute. In some states, special statutes for the creation 1 66 Corporations. [§ 95 of corporations are prohibited in the constitution, and no cor- porations can be created except in accordance with general statutory provisions. When a corporation is thus organized under general statutory authority it has no charter, properly speaking, but the articles of incorporation or ordinances or by-laws which it adopts under the general power to incorporate, taken in connection with the general statute authorizing such corporation, constitute its charter, and it has the powers which it undertakes to exercise in the proper method, subject al- ways to the limitations of the general statutory provisions under which its organization is attempted or effected. The purposes for which corporations may be chartered or organized are various, but maybe divided into general classes : (i) those for private advantage; (2) those public in their nature, analogous to the purposes for which governments are instituted. Corporations are correspondingly divided into private and public corporations. The ordinary corporation organized for transacting business and owning property is a private corporation ; the object of its creation is primarily to promote the personal interests of its members. Manufacturing corporations, corporations organized to carry on wholesale or retail business of various kinds, in- surance companies, and railroad, telegraph, telephone, and steamboat companies, all will be readily recognized as cor- porations private in their objects, for they are all created and carried on with the primary purpose of promoting the indi- vidual financial interests of those interested in them. Such corporations as these are sometimes designated as corporations organized for pecuniary profit, because they contemplate the ownership of property or the expenditure of money for the personal advantage of their members. Other private corpora- tions, however, are organized for the purpose of promoting the common individual interests of their members without having any immediate financial purpose. Thus persons may associate themselves together in a corporation with the object of promoting scientific research, or preserving or inculcating a particular form of religious belief, or promoting some work §96] Powers of States. 167 of charity or the like. Although such corporations have not for their primary objects the financial benefits of the mem- bers, they may nevertheless own property and raise and ex- pend money in furtherance of the general purposes of their organization. Public corporations, on the other hand, are organized for the general benefit and welfare of the people of a particular locality, in the promotion of objects of a public nature. Familiar examples of public corporations are cities, towns, and school districts ; but, as will hereafter be explained, the state itself and the subdivisions of a state for poKtical and gov- ernmental purposes, such as counties and townships, are also spoken of as public corporations. 96. Pc-wers of States as to Private Corporations. In general, the power to create and regulate private cor- porations is in the state governments and not in the federal government. It is a branch of the general police power, that is, the power to legislate as to the relation of individuals to each other. As already indicated in the preceding section, this authority is incident to the general legislative power with- out further specification, and is exercised by the legislative department by virtue of provisions in a state constitution for the creation of a legislative department. There are limita- tions on the power of the state in this respect, found in the provisions of the federal constitution that no state shall im- pair the obligation of contracts (Art. I, § 10, 1[ i) ; and that no state shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws (Amend. XIV, §1). The importance of the provisions as to the impairing of the obligation of contracts grows out of the fact that the priWlege which is granted by the state to a private corporation, whether it be for pecuniary purposes or for purposes not pecuniary, is considered to be granted as the result of a contract between the state and the corporation, and therefore any impairment 1 68 Corporations. [§97 or restriction of the powers of such a corporation ( Trustees of Dartmouth College v. Woodward) otherwise than as the right to do so may have been reserved by the state at the time of its creation (either by special provision in the charter or by general provision in the constitution or statutes in the state) would be an impairment of the contract with the state (see be- low, § 269). The provisions as to due process of law and equal protection of the laws are applicable to private corporations, which are deemed persons within the language of those clauses of the constitution, although they are artificial and not natural persons ; a private corporation is in this sense a person, although it is not a citizen. (See below, § 259.) One further distinction must here be made relating to the government control of private corporations. With reference to their property and business they are subject to the same supervision under the police power as private individuals. But so far as their business is public in its nature, such as the carriage of goods and passengers for hire, the supply of water, gas, electric light, and other pubhc utilities, or the operation of pipe lines for the transmission of oil or gas, or of ware- houses, telegraphs, and telephones, they are peculiarly subject to the police regulation as to rates. (^Munn v. Illinois. See also above, § 48.) 97. Public Corporations Classified. Powers and privileges are given by the state to public corpora- tions, not for the individual benefit of the persons who are members of them, but for their collective benefit as a part of the people of the state, and membership in such corporations depends, not upon individual choice, but upon residence in a particular locality or within particular limits. It is evident, therefore, that the charter of a public corporation or the priv- ilege' granted to it to have corporate existence does not con- stitute a contract, the impairment of which is prohibited by the federal constitution relating to impairment of contracts by the states. ( See below, § 269.) Consequently it is entirely optional with the legislature of a state to create such §97] Public Corporations Classified. 169 public corporations as it sees fit, to change the laws relating to their powers and privileges whenever and however it is deemed to be advisable, and to discontinue them according to its best judgment, having in view the public interests, re- gardless of any claim of vested right. But so far as such corporations may be authorized to make contracts and own property, they may perhaps be said to have vested rights which the legislature cannot directly interfere with. It has also been contended that there is a constitutional right of local self-government, that is, a right possessed by the people composing a city or town to manage their own local affairs which cannot be taken away or substantially impaired by the state legislature. If the state constitution, either in express language or by implication, recognizes the right of local self- government, then no doubt a limitation on the power of the legislature with reference to such public corporations as cities and towns may well be inferred. But as yet no such implied limitations have been agreed to and it will be impossible to dis- cuss the matter more fully or accurately without an elaboration which would be out of place in an elementary treatise. While, as a general principle or theory, the right of local self-govern- ment is recognized, it by no means follows that a state legisla- ture is limited otherwise than as its discretion may dictate in legislating with reference to the power of public corporations which can exist only as a result of the legislative will. At any rate, it is universally conceded that the state legislature may provide for changing the boundaries of public corporations and fixing the limits within which the powers conferred upon them are to be exercised. In this connection it is proper to suggest a convenient division of public corporations into two classes. The term public corporation can properly be applied only to collections of persons to which are given some powers of local self-govern- ment and which are authorized to act in an independent and collective capacity. Such corporations are usually termed municipal corporations. But the state may be divided into counties, townships, or similar portions for general govern- lyo Corporations. [§ 98 mental purposes, including the ownership of property, without the people of such portions being given any corporate powers. Such divisions are created merely to facilitate the election of officers, the levying of taxes, and like purposes which the state can provide for as it sees fit. Counties and townships are therefore not public corporations in a proper sense and are not municipal corporations, but for convenience they are sometimes designated as quasi-corporations. The distinction between these two classes of corporations is not very definitely fixed, but some distinction is usually recognized. The state itself is sometimes spoken of as a public corporation, but only for pur- poses of convenience. It does not derive its authority from the federal government, nor from any other definite source except the will of the people as expressed in its constitution ; and the rules respecting the powers which it may exercise are only remotely analogous to those recognized as applicable to corporations. 98. Power of the Federal Government to Create Corporations. As the federal government has only the powers which are ex- pressly or by implication conferred upon it in the constitution, and as the constitution does not expressly provide for the creation of corporations by Congress, the power of Congress to create a corporation must exist, if at all, by implication. It is well settled, however, that Congress may, in the exercise of its implied powers, create corporations when their creation is a necessary and proper means of carrying out the powers con- ferred upon it {McCulloch v. Maryland) . Thus, as Congress has the power to borrow money and regulate the currency, it may charter a United States bank with branches through which the financial operations of the government may be conducted ; or it may, by general law, provide for the organization of national banks with authority to carry on a general banking business and issue currency. It has also, in the exercise of its power with relation to post offices and post roads and interstate commerce, chartered railroad companies with authority to § 9^] Power of the Federal Government. 171 operate lines of road through different states and territories. No doubt the power to create private corporations and to reg- ulate the corporations thus created might legitimately be further extended if Congress should deem it wise to do so. Municipal corporations within the various states must neces- sarily, however, derive their authority from the states and not from Congress. But in the portions of the territory of the United States which are not within the hmits of any state and which are therefore subject exclusively to congressional legis- lation, Congress may create or provide for the creation of both municipal and private corporations as it sees fit. It is apparent, therefore, that while Congress may regulate corporations created under its authority, and may also to some extent control the business of corporations engaged in inter- state or foreign commerce (see above, § 93), it has no power to regulate other corporations ( United States v. E. C. Knight Co.). The fact that state regulations are not applicable beyond the limits of the state, and that these regulations are by no means uniform as to their policy or their methods, has sug- gested the desirability of a further cgntrol by Congress which should be uniform throughout the states. But without an amendment to the federal constitution giving Congress further power, it does not seem possible to suggest any theory on which Congress can legislate with reference to corporations in general. CHAPTER XVI. OTHER ENUMERATED POWERS OF CONGRESS. 99. References. Naturalization : J. Story, Constitution, §§ 1102-1104; J. R. Tucker, Constitution, § 269; J. Kent, Commentaries, *423; T. M. Cooley, Consti- tutional Law, ch. iv, § 3 ; Henry Wheaton, International Law ( Lawrence's ed.) Appendix, p. 891 ; A. B. Hart, Actual Government (Amer. Citizen Series) § 9; Boyd v. Thayer [x^^^z, 143 U. S. 135 ; McClain's Cases, 423) ; In re Rodriguez (U. S. Dist. Ct. 1897, 81 Federal Rep. 337 ; McClain's Cases, 434). Bankruptcy: J. Story, Constitution, §§ 1105-1115; J. R. Tucker, Constitution, §§ 270, 271; T. M. Cooley, Constitutional Law, ch. iv, § 4; Baldwin v. Hale (1863,-1 Wallace, 223; McClain's Cases, 436); Ogden V. Saunders (1827, 12 Wheaton, 213; 7 Curtis' Decisions, 132; Thayer's Cases, 1590; Marshall's Decisions, Dillon's ed., 549) ; Sturgesv. Crowninshield [\%i% 4 Wheaton, 117; 4 Curtis' Decisions, 362; Thayer's Cases, 1582). Copyrights and Patents: J. Story, Constitution, §§ 1151-1156; J. R. Tucker, Constitution, § 277 ; T. M. Cooley, Constitutional Law, ch. iv, § 10 ; E. A. Drone, Copyright ; A. H. Walker, Patents ; A. B. Hart, Actual Government, §§ 492, 493; Wheaton v. Peters (1834, 8 Peters, 591 ; II Curtis' Decisions, 223; McClain's Cases, 480) ; Patterson v. Kentucky (1878, 97 U. S. 501 ; McClain's Cases, 489) ; Herdic v. Roessler (1888, 109 N. Y. 127; McClain's Cases, 495) ; Dale Tile Manufacturing Co. v. Hyatt (1888, 125 U. S. 46; McClain's Cases, 498); Trade-Mark Cases (1879, 100 U. S. 82). Weights and Measures: J. Story, Constitution, § 1122; A. B. Hart, Actual Government, § 213; The Miantinomi (1855, 3 Wallace, Junior, 46; Thayer's Cases, 2192); Weaver v. Fegely (1857, 29 Penn. State, 27; McClain's Cases, 471; Thayer's Cases, 2195). Post-Opfices and Post-Roads : J. Story, Constitution, §§ 1124-1150; J. R. Tucker, Constitution, §§ 274-276 ; T. M. Cooley, Constitutional Law, ch. iv, § 9 ; Ex Parte Jackson (1877, 9^ U. S. 727) ; In re Rapier (1892, 143 U. S. no; McClain's Cases, 47S; Thayer's Cases, 732). 172 § 'oo] Naturalization. 17? Slavery: J. Story, Constitution (Suppl. Cooley's ed.), §§ 1915-1927; J. R. Tucker, Constitution, §§ 254, 309; T. M. Cooley, Constitutional Law, ch. xiii, § i ; Prigg v. Commonwealth (1842, 16 Peters, 539 ; Thayer's Cases, 476) ; Dred Scott Case, Scott v. Sandfoi-d (1857, 19 Howard, 393 ; Thayer's Cases, 480, and note) ; State v. Mann (N. C, 1829, 2 Dev. 263 ; Thayer's Cases, 473); Lemmon v. People (i860, 20 N. Y, 562, Thayer's Cases, 496) ; Civil Rights Cases (1883, 109 U. S. 3; Thayer's Cases, 554, McClain's Cases, 37); Robertson v. Baldwin (1897, 165 U. S. 275). Government of District of Columbia: J. Story, Constitution, §§ 1216-1223; J. R. Tucker, Constitution, § 293; T. M. Cooley, Constitu- tional Law, ch. iv, § 13; A. B. Hart, Actual Government, § 162; Metro- politan Railroad Co. v. District of Columbia (1889, 132 U. S. i ; McClain's Cases, 522) ; Roach v. Van Riswick (D. C, 1879, 4 McArthur & M. 171) ; Hepburn v. Ellzey {1804, 2 Cranch, 445 ; i Curtis' Decisions, 520; Thay- er's Cases, 348). Control of Sites for Forts, Arsenals, and Public Buildings : J. Story, Constitution, §§ 1224-1235; J. Kent, Commentaries, *429; T. M. Cooley, Constitutional Law, ch. iv, § 13 ; A. B. Hart, Actual Government, § 163; Ft. Leavenworth Ry. Co. v. Lowe (1885, 114 U. S. 525; McClain's Cases, 528); Commonwealth v. Clary {i%i\,% Mass. 72); Sinks v. Reese (1869, 19 Ohio State, 306) ; State v. Kelly (1884, 76 Maine, 331); Kohl V. United States (1875, gi U. S. 367 ; McClain's Cases, 1061 ; Thayer's Cases, 956). 100. Naturalization. In a subsequent chapter the subject of citizenship will be considered (see below, ch. xxxiv) , and it will there appear that persons may be citizens of the United States either by birth or by naturalization ; and that those who are citizens of the United States by virtue of either birth or naturalization are also citizens of the states in which they reside. It will also there appear that naturalization may be eifected, not only by means of a general law, but also by statutes or treaties applica- ble to limited classes of persons. In the present consideration of the enumerated powers of Congress, we are concerned only, with the provision that Congress shall have power " To establish an uniform rule of naturalization" (Const. Art. I, § 8, T 4) . In the exercise of this power Congress has prescribed the method by which aliens, that is, persons not born in the United States and subject to the jurisdiction thereof, may become citizens. It is only within modern times that the privilege of expatri- 174 Other Powers of Congress. [§ loo ation has come to be fully accorded by civilized nations to their own subjects, but from much earlier times governments have asserted the right to admit to citizenship those who have previously been subjects of another government, and this has frequently given rise to conflicting obligations ; for the doctrine that a subject cannot throw off his allegiance, even by departing from the country of his nativity and going to reside elsewhere, is inconsistent with the doctrine that he may be admitted to rights of citizenship in a foreign country. For instance, the assertion on the part of Great Britain of the right to impress into her naval service persons who had formerly been British subjects, but had by naturalization be- come citizens of the United States, was one of the causes leading to the War of 1812. In 1868 Congress passed a statute definitely asserting the right of subjects of foreign countries to absolve themselves from such allegiance, and providing for expatriation on the part of citizens of the United States desiring to become subjects of foreign states, and since that time treaties have been made with other countries by which the right of expatriation is mutually recognized. But without any definite recognition of the right of expatria- tion, it has been the policy of the various states and of the United States from the beginning to admit to citizenship on such conditions as may be imposed the subjects of foreign governments who come to this country with the intention of permanent residence, provided such persons desire to assume the duties and obligations of citizenship. Prior to the adoption of the federal constitution each state had the power to deter- mine for itself how such persons should acquire citizenship, and under the provisions of the Articles of Confederation (Article IV), the free inhabitants of each of the states were entitled to all the privileges and immunities of free citizens in the several states. Under this article it was not practicable for any one state to restrict citizenship therein, for persons coming to that state from other states, regardless of the con- ditions which the state imposed with reference to its own § loo] Naturalization. 175 citizenship, would be entitled to the same privileges. There- fore it was deemed expedient and proper to provide in the federal constitution that the subject of naturalization should be regulated by Congress. And while it is not express!)' speci- fied in the constitution that the power of Congress in this respect excludes the power of the states to legislate on the same subject, nevertheless it is evident that this power of Con- gress must be exclusive, otherwise there would be no uniform rule. Each state may determine for itself what political privileges shall be enjoyed by persons who are residents therein, and such privileges may be extended to those persons who are not citizens or withheld from those who are. (See below, § 193.) But since the adoption of the Fourteenth Amendment, by which it is expressly declared that citizens of the United States residing in any state are citizens of that state, it is generally conceded that a state cannot confer citizenship, and that the whole subject is regulated by the provisions of the federal con- stitution and the treaties and statutes made in pursuance thereof. Congress has accordingly provided specifically how aliens may become citizens of the United States and of the state in which they reside. These statutory provisions require that the alien shall make a preliminary declaration under oath, at least two years prior to his application for naturahzation, of his intention to become a citizen of the United States, and to renounce forever all allegiance and fidelity to any foreign power ; that on applying for citizenship he shall show that he has been resident within the United States for five years, and within the state or territory where he applies for naturaliza- tion for at least one year; that during the time specified he has behaved as a man of good moral character, attached to the principles of the constitution of the United States ; and that he entirely renounces and abjures all allegiance and fidelity to every state and sovereignty, and particularly by name to the state and sovereignty of which he was before a citizen or subject. The application may be made to a court of the 176 Other Powers of Congress. [§ 100 United States or of the state or territory in which he applies for admission, or to the clerk of any such court, and the cleric or court must determine whether his term of residence and other qualifications are such as entitle him to naturalization. The power of Congress to provide for naturalization in accordance with uniform rules includes, of course, the power to impose conditions or to limit the privilege to such classes of persons as in its judgment it shall deem proper. At first the privilege was restricted to free white persons. After the abohtion of slavery the words "free white " were stricken out of the statute and for a time there was no limitation as to race or color ; but subsequently the statute was again amended so that it should apply only to aliens who are free white persons and to aliens of African nativity and persons of African descent ; consequently persons not belonging to the white races nor to the African race cannot be naturalized. It has accordingly been held that persons of Indian blood coming into the limits of the United States, for instance from the British possessions, are not entitled to naturalization, and the same reasoning excludes the Chinese, the Japanese, and indeed all persons of colored races save only those of the African race (In re Roderiguez). But it must be borne in mind that these restrictions apply only to naturalization, not to citizenship by birth. Persons of African descent born within the limits of the United States are citizens by birth without regard to naturalization either of themselves or their parents. Indians cannot become citizens by naturalization under the general law, but may be naturalized in accordance with special acts of Congress applicable to them. Chinese cannot be natu- ralized under general law, and by a special statutory provision they are expressly excluded, but their children born in this country are citizens. (See below, § 194.) In connection with the subject of naturalization it may be remarked, however, that persons may permanently reside in one country without losing citizenship in another, and that, without assuming the duties and obligations of citizenship in the country of their residence, they may be fully subject to the § loi] Bankruptcy. 177 laws of the country where they live. Citizenship involves per- manent allegiance, that is, an allegiance which is permanent until dissolved by some formal expatriation; but temporary allegiance, so long as residence continues, is owed to the sovereignty and laws of the country of such residence. 101. Bankruptcy. Congress is given the express power to establish " uniform laws on the subject of bankruptcy throughout the United States" (Const. Art. I, § 8, f 4). A bankruptcy law is one by which provision is made for the distribution of the property of an insolvent debtor among his creditors in proportion to their proved claims, and it may include also the discharge of the debtor from further liability to his creditors. The statutes which have been passed by Congress oil the subject of bank- ruptcy have included both these features, and they are dis- tinguishable in this respect from the statutes of the various states which usually provide only for the distribution of prop- erty and not for discharge from further liability. It has been determined, however, that the power of Congress to pass bank- ruptcy laws does not exclude the power of the states to legis- late on the same subject, and in the absence of any legislation by Congress, the states may legislate, not only for the distri- bution of an insolvent debtor's property, but also for his dis- charge from further liability. But the states are restricted in this respect by limitations which are not applicable to Congress ; for a state cannot provide for the discharge of a debtor from liability under a contract made prior to the passage of the state law, as this would be to impair the obligation of the contract (see below, § 265), nor can it discharge the bankrupt from liability to creditors living outside of the state who do not present their claims in the state bankruptcy proceeding, for this would be to adjudge and determine in a state court the rights of persons not subject to the jurisdiction of such court (^Ogden v. Saunders, Sturges v. Crowninshield, and Baldwin v. Hale) . When Congress has legislated upon the subject of bank- ruptcy, any state statute in conflict with the provisions of the u 178 Other Powers of Congress. [§ loz federal statute on the subject, or any proceedings of a state court interfering with the proceedings or judgments of a federal court acting in pursuance of the federal statute, will necessarily be invalid ; but so far as the administration of the slate insolvency laws does not interfere with the operations of the federal bankruptcy law, the state laws will still be valid. Proceedings under the state insolvency statutes are therefore entirely proper until some action under the federal bankruptcy laws has been commenced. 102. Copyrights and Patents. " To promote the progress of science and useful arts," Con- gress is authorized to secure " for limited times to authors and inventors the exclusive right to their respective' writings and discoveries " (Const. Art. I, § 8, If 8). In the exercise of this authority, Congress (in 1 790) passed patent laws and copy- right laws, the term " patent " being used to describe an inven- tion or discovery, and the term " copyright " to signify the exclusive right of an author to publish his writings. The word " patent," as originally used in English law, signi- fied the grant of some privilege, property, or authority made by the government or sovereign to an individual or individuals. The term derived this meaning from the fact that the sovereign in making such grant is.sued "letters patent," that is, an open or public instrument, bearing the great seal, in which the right or privilege granted was set out. Titles of nobility were thus conferred as well as estates, corporate privileges, the exclusive right to carry on a particular trade or deal in a particular com- modity, and the like. In this country the instrument by which the government conveys title to land to a purchaser is still called a patent. It would be proper to speak of the grant of the exclusive privilege to manufacture an invented article, or to make use of a valuable discovery as a patent, but in common usage the term, as employed with relation to inventions and discoveries, signifies the privilege itself rather than the grant of the privilege, and is, in ordinary parlance, frequently used to designate the invention or discovery, or even the manufactured § loz] Copyrights and Patents. 179 article or other thing manufactured or used under or in pursu- ance of such privilege In enacting the patent laws under the authority of the con- stitution to promote the progress of science and useful arts. Congress has but followed the custom of other governments. In all civilized countries there are now some such provisions for the promotion of invention and discovery in the useful arts. According to the method provided for by Congress, the dis- coverer of a useful invention or process makes application to the patent office, which is a branch of the Interior Department of the government, for a patent, that is, for the exclusive privi- lege of using and transferring to others the right to use his invention or discovery. The proper officers of the department investigate his claim, and upon becoming satisfied that his in- vention is new and useful, letters patent are issued to him granting such exclusive privilege. These letters are, however, o^y prima facie evidence that he is entitled to a patent, and the question whether the invention or discovery is such as entitles him to an exclusive privilege with reference thereto under the laws of Congress, is ultimately to be determined by the courts in an action brought by or against him for infringe- ment on the part of some one making a conflicting claim, or by the United States against him to determine the validity of his claim. In short, the right granted is treated as a property right to be determined and protected in the courts. The power to authorize the granting of exclusive privileges of using, manufacturing, and selling an invention or discovery can be granted only by the federal government. The states cannot exercise such power, for in doing so they would neces- sarily interfere with the authority of Congress. But a patent right like any other property is owned and held subject to law, and the states may make such regulations with reference thereto as they see fit, so long as such regulations do not directly or unreasonably interfere with the privileges acquired under the patent laws. (See Patterson v. Kentucky.) Thus the state, in the exercise of its police power, might prohibit the sale of toy pistols to children, even though the pistols were manufactured t8o Other Powers of Congress. [§102 under a patent; and it has been said that a state may by statute regulate the negotiability of notes given for patent rights. (See Herdic v. Roessler.) A copyright is the exclusive privilege of publishing or copying an original writing or composition ( Wheaton v. Peters'). The statutes passed by Congress on the subject pro- vide that the author or composer shall file vifith the librarian of Congress a printed copy of the title of the book, map, chart, etc., or a description of the painting, etc., and at the time of publication, deliver to the librarian two copies of the book. or other publication, or in the case of a painting a pho- tograph of the same, and announce by printing on the title- page or page following of every copy the fact and date of the copyright claimed. A copyright differs in at least one important feature from a patent right in that in the case of a patent the letters issued constitute prima facie evidence of the privilege, while in case of a copyright there is no formal document, but the author or other person claiming the right may assert it in the courts, proving the facts necessary to entitle him to such privilege as provided by the statute. Like the patent laws, the copyright laws are modelled after those which had previously been in existence in England and other countries. Exclusive privileges to authors have been recog- nized in all civilized countries, and recently provisions have been made by Congress for an international copyright, so that a book copyrighted in one country cannot be published in another except under the authority of the owner of the orig- inal copyright. Without a copyright, the writer or composer of an original literary or musical or artistic production may retain the exclusive use and enjoyment of it ; but he cannot publish it without giving to every one the general right to make such use of it as he sees fit, including republication, unless he secures at the time of such publication an exclusive privilege under the copyright laws. No express authority is given to Congress with reference to securing to manufacturers and dealers the exclusive use of trade- marks. It was attempted, to provide for such exclusive use §104] Weights. — Post-Offices. i8i under the copyright law, but it was held by the Supreme Court of the United States in the Trade-Mark Cases that Congress could not provide for the copyrighting of trade-marks. Under the authority to regulate interstate and foreign commerce, Congress has, however, authorized the registration of trade- marks on goods destined for interstate or export trade, and interference with or infringement upon the lawful use of a trade- mark is illegal. 103. VTeiglits and Measures. In connection with the power to coin money and regulate the value thereof, Congress is expressly authorized to fix the standard of weights and measures (Const. Art. I, § 8, IT s)- But this power has never been exercised by Congress. Con- gress has indeed (i866) authorized the use of the metric system, but there is no requirement of its use. Until there is some further federal legislation on the subject, the power to establish standards of weight and measure is in the states acting each for itself. In the absence of any state statute, the com- mon law or customary standards are recognized. In many states there is legislation fixing standards, providing penalties for the use of false weights and measures, and determining how many pounds of different commodities and substances shall constitute a bushel, the size of various fruit boxes and packages, and like matters. There is noticeable and very inconvenient lack of uniformity among the states on the entire subject, but thus far no steps have been taken by Congress to establish uniformity under the authority which has been given to it in the constitution. 104. Post-OfEces and Post-Roads. The power " To establish post-ofifices and post-roads " (Const. Art. I, § 8, IT 7) has been fully exercised by Congress in creating a post-office department of the federal government, under which the transportation of mail matter is generally and economically effected. Very few questions have arisen with reference to the exercise of this power, and there has never 1 82 Other Powers of Congress. [§ los been any conflict in that respect between federal and state authority, the power and practice of the United States to con- trol the whole subject being fully recognized. Congress may undoubtedly make railroads, steamship lines, and other methods of transporting the mails, post-roads ; and thereby bring such means of conveyance under federal control. Indeed, Congress might no doubt go further than it has already gone in establish- ing and controlling lines for mail and telegraphic communica- tion. As railroad, steamship, and telegraph lines are almost universally engaged in carrying on interstate and foreign com- merce as well as in transporting the mails. Congress has a double power of regulation. One important question has, however, arisen as to the extent to which Congress may authorize the exclusion from the mails of matter which is deemed injurious to the public. Under the power to establish post-offices and post-roads, it has been pro- vided that obscene matter, advertisements of lotteries, and communications calculated to defraud or in their nature libel- lous, may be excluded, and this has been held to be within its power (^Ex parte Jacksori) , the discretion to determine what matter is improper being left to the post-office department. A question may well arise as to the extent to which this discretion can be exercised. So long as the matter excluded is matter which a reasonable public policy declares to be improper, there can be no question ; but if Congress should attempt to exclude from the mails matter which is essentially proper and not in- jurious, it might well be questioned whether the restriction would not be unlawful, perhaps under the general requirement that laws should be uniform in their operation, and that all per- sons are entitled to the equal protection of the laws. It is settled (see In re Rapier) as to lottery companies that even though chartered by the state in which they are operated, they may be excluded from United States postal facilities. 105. Slavery and Peonage. The federal constitution as originally adopted recognized the existence of human slavery in providing that " The migra- § 105] Slavery and Peonage. 183 tion or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808 " (Const. Art. I, § 9, IT i) ; and further, that "No person held to service or labor in one state under the laws thereof, escaping into another, shall in consequence of any law or regulation therein be dis- charged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due" (Const. Art. IV, § 2, ^ 3). In pursuance of the latter of these provisions, the Fugitive Slave Laws of 1793 and 1850 were passed, authorizing the owners of slaves to pursue and retake them in another state. But by the Thirteenth Amend- ment, ratified in 1865 by the legislatures of a sufficient number of the states to make it a part of the constitution, slavery and involuntary servitude, except as a punishment for crime, were abolished ; and since the adoption of that amendment slavery in any of the United States or in any place subject to the jurisdiction of the United States has ceased to exist as an insti- tution recognized by law, and the questions which had been previously discussed relating to slavery have ceased to be of any practical importance. Soon after the adoption of the Thirteenth Amendment, evidently under the supposed authority given by the second section of that amendment. Congress passed a statute (1867) abolishing and prohibiting tlie holding of any person to ser- vice or labor under the system known as " peonage " within any territory or state. As express reference is made in the act to the territory of New Mexico, although the provisions of the statute are not limited to that territory, it is evident that . the purpose was to forbid the perpetuation of the system of involuntary service which had existed in that territory since its acquisition from Mexico. Some question has been recently raised as to whether the Fifteenth Amendment and the statutes against peonage are not violated by sentencing convicts to hard labor under state statutes which authorize the hiring of such convicts to private employers under the contract system. 184 Other Powers of Congress. [§107 106. Government of the District 6f Columbia. Congress is given povver " To exercise exclusive legislation in all cases whatsoever over such district (not exceeding ten miles square) as may by cession of particular states and the accept- ance of Congress become the seat of government of the United States" (Art. I, § 8, f 17). In pursuance of this pro- vision and under the authority of Congress, Maryland and Virginia in 1 790 ceded to the United States portions of their territory which were set apart as the seat of the federal gov- ernment. Subsequently the portion of the district which had been ceded by Virginia was re-ceded to that state, and the district now comprises only the territory acquired from Mary- land. Within this district the exclusive power of legislation for all purposes is in Congress, and although Congress in 18 71 undertook to establish a government for the district with legislative powers, and the government thus established con- tinued in operation until 1878, it was seriously questioned whether the legislation enacted by it was valid. Indeed, in the case of Roach v. Van Riswick, decided by the Supreme Court of the District of Columbia in 1879, the conclusion was reached that all the legislation of the government thus established was without legal authority. However, it is well settled that Congress may create munic- ipal corporations within territory which is subject to its exclu- sive jurisdiction, and by the legislation of Congress now in force on the subject, the District is a public corporation, hav- ing such authority as is usually conferred upon such corpora- tions (^Metropolitan Railroad Co. v. District of Columbia'). The District is not a state of the Union, and those who per- manently reside within it are not citizens of any state, although they are citizens of the United States {^Hepburn v. Ellzey) . 107. Legislation as to Places Ceded to the Federal Government. By the constitutional provision referred to in the preceding section. Congress is authorized also to exercise exclusive legis- § I07] Special Federal Territory. 185 lation " over all places purchased by the consent of the legisla- ture of the state in which the same shall be for the erection of forts, magazines, arsenals, dock yards, and other needful buildings." Territory ceded to the United States under this provision ceases to be territory of the state, and is no longer subject to the jurisdiction of the state by which it is thus ceded. The grant to the United States of the exclusive power of legislation with reference to such territory excludes it and the persons permanently residing therein from the jurisdiction of the state, and as a consequence no state can tax property which is thus situated, nor punish crimes committed within such territory ; for the persons therein permanently residing are not citizens of any state. It has been held, however {Ft. Leaven- worth Railroad Co. v. Lowe'), that in ceding such territory the state may reserve the power to tax property located there, and also the right to serve process of its courts on persons found therein. Such a reservation of power has been recog- nized by the United States as proper, and it is expedient, for otherwise the forts, navy-yards, and public buildings of the United States might be resorted to by those seeking to evade the state laws. It is to be borne in mind that it is only with reference to territory thus voluntarily ceded that the state loses its jurisdic- tion. The United States may, like any other sovereign power, acquire the ownership of property by purchase, or by the exercise of the power of eminent domain {Kohl v. United States). But it acquires exclusive jurisdiction over property thus purchased or condemned only by voluntary cession from the state. For instance, if at the time of the admission of a state to the Union, the United States has forts or public build- ings located within the limits of such state as admitted, the state acquires jurisdiction with reference thereto unless in the act of admission or by subsequent voluntary action of the state exclusive jurisdiction is reserved or ceded to the United States. As has already been indicated in the chapter in which the power of the United States to punish crimes is considered (see above, § 56), Congress has legislated for the punishment 1 86 Other Powers of Congress. [§ 107 of crimes committed in the District of Columbia and in other ceded districts, and like legislative power with reference to such districts may be and is exercised by Congress in other matters. CHAPTER XVII. WAR POWERS. 108. References. J. Story, Constitution, chs. xxi, xxii ; T. M. Cooley, Constitutional Law, ch. iv, § 12 ; H. C. Black, Constitutional Lam (2d ed.), pp. 220-224 i J. I. C. Hare, Constitutional Law, Lects. xli-xliv ; J. R. Tucker, Consti- tution, pp. 576-597 ; J. N. Pomeroy, Constitutional Law, pp. 281-288 ; G. T. Curtis, Constittttional History, I, 527-531 ; The Federalist, Nos. 23-26, 29, 41 ; A. B. Hart, Actual Government (Amer. Citizen Series), ch. XXV ; A. V. Dicey, Law of the Constitution {4th ed.), 271, 289; J. B. Thayer, Cases on Constitutional Law, 2274-2279; Martin v. Mott (1827, 12 Wheaton, 19; 7 Curtis' Decisions, 10; McClain's Cases, 518; Thayer's Cases, 2290) ; The Prize Cases (1862, 2 Black, 635 ; McClain's Cases, 515; Thayer's Cases, 2339, and note) ; Ex parte Milligan (1867,4 Wallace, 2; Thayer's Cases, 2376) ; Ex parte Merryman (1861, Taney's Reports, 246; Thayer's Cases, 2361); Dynes v. Hoover (1857, 20 Howard, 65; Thayer's Cases, 2333) ; United States v. Clark (1887, 31 Federal Rep. 710; Thayer's Cases, 2413). 109. State Power as to War. Among the express limitations on the powers of the state which were incorporated into the federal constitution in 1787, were prohibitions against entering into any treaty, alliance, or confederation, granting letters of marque and reprisal, keeping troops or ships of war in time of peace, entering into any agreement or compact with another state or with a foreign power, or engaging in war unless actually invaded, or in such imminent danger as will not admit of delay (Art. I, § 10). The object of the prohibition as to treaties, alliances, or confederations among themselves, or with a foreign power, was no doubt to prevent the states from having any relations with each other as independent powers other than expressly 187 1 88 War Powers. [§ no authorized by the constitution ; and also to prevent any attempt on the part of one state to obtain an advantage over another by arrangements, commercial or otherwise, with foreign countries. The broad principle was established that as to the relations of the states among themselves and as to the relations of the people of the United States to those of foreign countries, the federal government should be supreme and its power exclusive. But evidently an important con- sideration was to avoid hostility between the states, and alliances with foreign governments which might involve offensive or defensive military operations, and this idea is carried out in the prohibition as to maintaining troops or ships of war and engaging in war. The war power, in a broad sense, is reserved to the federal government. But a state may, in case of sudden emergency, repel invasion, and in doing so it may perhaps carry on mili- tary operations outside its own boundaries, such operations being limited, however, to the purpose of preventing an im- minent invasion. 110. state Militia. The right of the state to maintain an organized militia is, however, expressly recognized by the federal constitution (Amend. II). The militia of the state consists of those persons who under the law are liable to perform military duty ; and such persons may be enrolled under officers so as to be ready for service when called upon. The militia may be employed by the state in maintaining internal tranquiUity and in enforcing obedience to state law, but cannot under state authority be sent outside the limits of the state unless, as sug- gested in the preceding paragraph, to prevent an imminent invasion. In the various states there are statutory provisions as to the organization and discipline of the militia ; and so long as the state does not attempt to make use of this power for purposes forbidden by the constitution, the matter is left to state control. §112] State and Federal. 189 111. Federal Po'wer as to State Militia. Congress is authorized "To provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions," and " To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress " (Const. Art. I, § 8, Iflf 15, 16). It is evident that the militia here referred to is the militia of each state, and that when thus called out for federal purposes, the militia of a state becomes a military force of the federal government. The method of calling out the mihtia is prescribed by federal statute, and the command over them, as over other military forces of the United States, is vested in the president (Art. II, § 2). His exercise of this power will be considered in the chapter relating to his war powers. (See below, § 131.) 112. The Army and Navy. Congress is given express authority " To raise and support armies " with the provision that " no appropriation of moneys to that use shall be for a longer term than two years " and " To provide and maintain a navy " (Const. Art. I, § 8, ^T 12, 13) . The reason for the provision that appropriations for the sup- port of the army must be for a limited period only has been already suggested. (See above, § 69.) The armies may con- sist of the state militia called into the federal service ; but Con- gress is not limited to this method of raising armies, and may provide for the enlistment of regular federal troops, or if deemed necessary, for compelling service by conscription, and the'calling out of the state militia as such has been found to be inexpedient save for temporary purposes. The United States maintains a regular army, and in time of war provides for additional forces by the enlistment of volunteer regiments which may be enlisted and recruited in the various states as Congress shall provide. 1 90 War Powers. [§ n3 Regiments of state militia may be enlisted as volunteer regi- ments. There is no practical distinction between the militia of the various states called into the service of the United States, and the other military forces of the United States, save as to their original organization and the appointment of subordinate officers. As the states are prohibited from having ships of war, the federal navy is composed entirely of vessels belonging to, or for the time being employed in the service of the United States under its authority. The powers of the president as to the army and navy will be discussed in a subsequent chapter. (See below, § 130.) The power to grant letters of marque and reprisal (Const. Art. I, § 8, f 1 1 ) involves the granting to private vessels, sail- ing under the flag of the United States, the authority to cap- ture enemies' vessels and other property upon the high seas. Indeed, reprisals may be authorized without the existence of a state of war, and for the purpose of securing from a foreign country or its citizens, redress for grievances ; but the making of reprisals is an initial step towards the commencement of hostilities, and may therefore be properly regarded as incident to the war-making power. Private vessels to which letters of marque and reprisals have been granted, usually denominated privateers, act under the authority of the government granting such letters, but are not, properly speaking, a part of its navy. 113. PoTwer to Declare War. Congress is expressly given the power to declare war (Const. Art. I, § 8, 1[ 11), and this grant of power is exclusive. The executive department, although it is charged with the foreign relations of the government, cannot declare war, but a state of war may exist without being declared, and the president may employ the military and naval forces of the United States in repeUing invasion before any declaration of war has been made by Congress, or in suppressing insurrection. One of the inci- dents of a state of war is the seizure of the enemy's property and vessels, and it has been held that the seizure of vessels of § 11+] Declaration and Military Law. 191 a hostile power, as prizes of war, may lawfully take place although war has not been declared. (See Prize Cases.) However, as the money for the support of the army and navy must be appropriated by Congress, there is no practical danger that this country will be engaged in war for any considerable length of time without a formal declaration of war having been made by authority of Congress. 114. Military La-w. The express power given to Congress " To make rules for the government and regulation of the land and naval forces" (Const. Art. I, § 8, 1[ 14) has been exercised by the adoption of a code of military law for the government of the officers and men composing the land and naval forces. This code is in force in time of peace as well as during war, but it applies exclusively to the persons who constitute the land and naval forces, that is, the soldiers and sailors, including in those terms both officers and men. By this military law their conduct is regulated and punishments for its violation are provided. Offenders against the military law are triable before a court-martial composed of officers of the army or navy, as the case may be, under the direction of a judge advocate ; and the punishment of the offender found guilty is administered under military or naval authority. The different forms of punishment provided for include death, imprison- ment, fine, degradation in rank, dismissal from the service, reprimand, and other penalties. It is to be noticed that a court-martial has jurisdiction only over persons who are enrolled in the military or naval forces, and administers only the military law. When a state of war exists and the operation of the ordinary courts within any portion of territory which is subjected to military occupation is thereby suspended, the military power may provide tem- porarily for miUtary courts or commissions administering law for the time being among persons within such territory who are not part of the military forces, but these military courts or commissions are not courts-martial and they can exercise 192 War Powers. [§115 jurisdiction within the Hmits of the United States only where the ordinary operations of the courts have been suspended by declaration of martial law. While declaration of martial law is not expressly provided for in the constitution, it is regarded as authorized by the provision for the suspension of the privi- lege oi habeas corpus (Const. Art. I, § 9, IT 2). 115. Subordination of the Military to tlie Civil Authority. While the military power must necessarily be absolute for the time being, and beyond the control of the civil authorities so far as it is lawfully exercised, yet it is regarded as ex- ceptional and, so far as it affects persons not in the military or naval service, temporary. The civil law, by which term is here meant the general law both civil and criminal admin- istered by the ordinary courts, is the law which governs indi- viduals in all cases except as they may be outside of the civil law by reason of being in the army or navy, or of being in a region where martial law has been declared and the ordinary operations of the courts suspended. The civil courts cannot interfere with the proceedings of courts- martial so far as they have jurisdiction {Dynes v. Hoover) ; but, on the other hand, courts- martial cannot exclude the general jurisdiction of the civil courts. Even persons who are in the military or naval service and are therefore subject to the military law are not thereby exempted from obedience to the civil law,- and may be required to answer in the ordinary courts for their acts in violation of the general law. Thus a soldier may be tried in the regular courts for murder or other crime committed by him, even though he may have been already tried therefor as a violation of the military law by a court-martial. Whether a soldier is to be held individually responsible for acts done under orders or authority of his superior officers or the general military power, is a wholly different question. He may be justified for thus acting if the occasion is one for the exercise of military authority, but his justification is to be determined when he is called upon to account for his acts in the regular courts. The general supremacy of the civil over the military § lis] Subordination of the Military. 193 authority is fully recognized in England and the United States, and is one of the essential features of our constitutional sys- tem. The maintenance by the king of standing armies in the colonies in time of peace and his subordination of the civil to the military power are among the grievances enumerated in the Declaration of Independence. 13 CHAPTER XVIII. IMPLIED POWERS OF THE FEDERAL GOVERNMENT. 116. References. J. Story, Constitution, §§ 433-435, 1236-1294, 1329, 1330; T. M. Cooley, Constitutional Law, ch. iv, § 15; H- C. Black, Constitutional Law, §§ 105, 106; McCulloch^. Maryland (l%i%i,'^'Si&2Ao\i,T,\(i; 4 Curtis' Decisions, 415; McClain's Cases, i; Thayer's Cases, 1340; Marshall's Decisions, Dillon's ed. 252); Gibbons v. Ogden (1824, 9 Wheaton, i; 6 Curtis' Decisions, i; McClain's Cases, 235; Thayer's Cases, 1799; Marshall's Decisions, Dillon's ed., 421); Legal Tender Case (1884, no U. S. 421; McClain's Cases, 442); Anderson v. Dunn (1821, 6 Wheaton, 204; 5 Curtis' Decisions, 61 ; McClain's Cases, 548) ; Kilburn v. Thompson (1880, 103 U. S. i58; McClain's Cases, 553) ; Ex parte Curtis (1882, 106 U. S. 371 ; McClain's Cases, 554) ; Logan v. United States {iSgz, 144 U. S. 263 ; McClain's Cases, 557 ; Thayer's Cases, 343) ; T/ie Chinese Exclusion Case, Chae Chan Ping v. United States (1889, 130 U. S. 581; McClain's Cases, 562); Fo7ig Yue Ting v. United States (1893, 149 U. S. 698; McClain's Cases, 567 ; Thayer's Cases, 374). 117. Implied PoTvers Szpressly Given. As has already been indicated (see above, §18), the federal government, although a government of limited and delegated rather than general powers, has such implied powers as may be necessary to the reasonable exercise of the powers granted. This would be true without any express provision, but it is expressly declared that Congress shall have power " To make all laws which shall be necessary and proper for carrying into execution " the powers previously enumerated, and " all other powers vested by this constitution in the government of the United States or in any department or officer thereof" (Const. Art. I, § 8, If I'S). This clause of the constitution has two aspects : it recognizes the existence of implied powers, and it 194 § iiy] Implied Powers Expressly Given. 195 authorizes Congress to regulate the exercise of such powers by the departments or officers of the United States. It would be impossible to enumerate in an exhaustive way the classes of statutory provisions which have been enacted by Congress in the exercise of its implied powers, and it would be equally impossible to forecast the legislation which might be proper under implied powers not, as yet, recognized or acted upon. A few examples of the exercise of implied powers will be sufficient for present purposes. Under the general power to raise revenue and carry on the fiscal operations of the government. Congress passed two acts incorporating a United States bank (see McCulloch v. Maryland), and more recently has established a system of national banks. Under the power to regulate foreign and interstate commerce, Congress has passed a variety of stat- utes relating to navigation, immigration, and similar sub- jects. (See Gibbons v. Ogden.) Under the power to borrow money and the general power implied from various provisions of the constitution to regulate the currency. Congress has made treasury notes a legal tender in the payment of debts (^Legal Tender Case). Under the power given to each House of Congress to determine the rules of its proceedings and to act as a co-ordinate branch of the legislative department, punish- ment of contempts of the authority of either House may be provided for, and such punishment may be inflicted on per- sons who are not members {Alexander v. Dunn and Kilbourn V. Thompson). Congress may regulate the methods of ap- pointment of officers and employes of the United States, and prescribe their qualifications so far as such qualifications are not prescribed in the constitution itself, and it may prohibit and punish misconduct on the part of such officers {Ex parte Curtis) . Under the power to regulate commerce and in the exercise of the powers incident to the sovereignty which belongs to the government of the United States, Congress has provided for the exclusion of the Chinese {Chinese Exclusion Case and Fong Yue Ting v. United States). 196 Implied Powers. [§ nS 118. Restrictions on the Exercise of Power by Congress. What has been said in a previous section (above, § 20) as to express and implied restrictions on the powers of the several departments of the federal and state governments, is especially applicable to the powers of Congress. It cannot exercise any power not given to it by express grant or reasonably implied from the powers which are granted. Furthermore, there are express limitations on its power such as those enumerated in Article I, § 9, of the constitution which, although not directly stated to be limitations on congressional power, are evidently intended to apply especially to Congress, as they are included in the article of the constitution relating to the legislative de- partment. But these limitations are all discussed in connec- tion with the various subjects to which they relate and need not now be further considered. Part IV. Executive Power. CHAPTER XIX. GENERAL NATURE OF EXECUTIVE FUNCTIONS. 119. Keferences. J. I. C. Hare, Constitutional Law, lect. x; J. R. Tucker, Constitution of the United States, §§ 98, 99 ; The Federalist, Nos. 69-73 i James Bryce, American Commonwealth, chs. v, vi, xx, xxi, xli ; J. W. Burgess, Political Science and Constitutional Law, II, 185, 320; J. N. Pomeroy, Constitu- tional Law, ch. v; A. B. Hart, Actual Government (Amer. Citizen Series), ch. viii. 120. Historical View as to the Executive. Among a primitive people, not yet united under any strong central government, and recognizing the right of local self- government as existing in small divisions or bodies, limited and temporary authority only is conceded to any one official ; there is but little concentrated executive power. Such a people were the Anglo-Saxons during the early period of their existence in England. But the necessary development of a stronger central government will be effected by the assertion of greater power on the part of some leader or ruler, and before the Norman Conquest the office of king had been fully established in England, though the king was not looked upon by any means as the source of all power or as entitled to exercise absolute 197 198 Executive Power. [§ izo power. After the Norman Conqiiest, and especially after the superiority of the king over the nobility had been established, the monarch, although never recognized as the repository of absolute authority, was regarded as ruling by divine right, and as the source of all the authority exercised by the general government. He made the laws, after consultation with his duly appointed counsellors, and even after Parliament became fully established, he framed statutes for the consideration of Parliament. In course of time the importance and influence of Parliament had so far increased, especially by the persistent assertion on its part of the right to regulate the levying of taxes and the expenditure of money, that the power to legislate was fully established as a Parliamentary power, and Parliament (king, lords, and commons) became the legislative branch of the government, whilst the monarch was recognized as the executive branch. Until 1 715 the king still participated with Pariiament in the making of laws inasmuch as he could veto any bill sent up to him by the two Houses ; and still no act of Parliament becomes a statute until it has received the royal approval. In the relations between the government of England and foreign governments, he was the sole representative of the nation. The supreme military authority was in him, and he exercised the function of enforcing the laws. In course of time the judicial authority was separated, to a great extent, from the person of the sovereign, but it was exercised by judges appointed by the sovereign, and the judicial branch of the government was recognized as deriving its authority from the executive. This was the substantial framework of the English constitu- tion at the time the colonies asserted their independence, and the state constitutions, as has already been explained {supra, ch. iv), recognize three co-ordinate departments of govern- ment, the legislative, the executive, and the judicial. By these constitutions, and in general by all state constitutions sub- sequently framed, the governor as the head of the executive department is the head of the state. He is the chief adrainis- § izo] Historical View. I99 trative officer charged in a general way with the enforcement of the laws ; he is at the head of the military establishment of the state ; and he has the pardoning power. He has also some functions to perform in connection with the legislative depart- ment. By the constitution of the United States, which was framed in general analogy to the state constitutions then exist- ing, the president is the head of the military and naval forces ; he represents the national government in its relation with foreign governments ; he participates in legislation by exercis- ing the. power of approving or vetoing bills passed by Congress ; and he is vested with the power of pardon (Art. II) . It appears, therefore, that the chief executive, whether of a state or of the federal government, exercises a variety of func- tions, which must be separately considered. CHAPTER XX. ADMINISTRATIVE FUNCTIONS; APPOINTING AND PARDONING POWER. 121. References. Administration and Enforcement : A. V. Dicey, Law of the Con- stitution, chs. V, vi ; Alexis De Tocqueville, Democracy in America, I, ch. v; J. I. C. Hare, Constitutional Law, 138-145; J. R. Tucker, Constitution, § 362 ; J. N. Pomeroy, Constitutional Law, §§ 662-668 ; A. B. Hart, Actual Gcnjernment (Amer. Citizen Series), § 252; Marbury v. Madison (1803, I Cranch, 137; i Curtis' Decisions, 368 ; McCIain's Cases, 815; Thayer's Cases, 107 ; Marsliall's Decisions, Dillon's ed., i) ; In re Neagle (1889, 135 U. S. I ; McCIain's Cases, 65; Thayer's Cases, 335); In re Debs (1895, 158 U. S. 564). Appointment of Officers: J. Story, Constitution, §§ 1 524-1529; J. N. Pomeroy, Constitutional Law, §§ 642-661 ; J. R. Tucker, Constitution, §§ 357-359; The Federalist, Nos. 76, 77; A. B. Hart, Actual Government (Amer. Citizen Series), §§ 125, 130, 131 ; United States v. Germaine (1878, 99 U» S. 508; McCIain's Cases, 607) ; Blake v. United States (1880, 103 U. S. 227 ; McCIain's Cases, 610). Pardons: J. Story, Constitution, §§ 1494-1504; J. R. Tucker, Consti- tution, § 352; J. N. Pomeroy, Constitutional Law, §§ 682-696; The Fed- eralist, No. 74; Ex parte Wells (1855, 18 Howard, 307 ; McCIain's Cases, 569); Cummings\. Missouri {\'&(!h,a,^A\z.ce, 277; Thayer's Cases, 1446) ; Ex parte Car/awrf (1866, 4 Wallace, 333; McCIain's Cases, 576; Thay- er's Cases, 1453, and note). 122. Administration and Enforcement of Law. The administrative power of the federal or a state govern- ment is necessarily vested in the executive department. Our system of government does not, however, recognize administra- tive law as superior to the civil law administered by the courts. Executive oflScers, even the highest, are subject to the law. Although the chief executive cannot be directly interfered with by the courts in the discharge of his duties (see above, § 25), he is liable, in both civil and criminal proceedings, for § 122] Administration and Enforcement. 201 breach of the law in the same way as a private citizen ; and subordinate executive officers may be directly controlled by the courts as to the discharge of their duties. It must be understood, however, that where a discretion is given to an executive officer he cannot be controlled by the courts in the exercise of his discretion, although he may be compelled to act where it is his duty to act, and prevented from acting where he has no right to do so {Marbury v. Madison). In speaking of the division of power among the three depart- ments of government, it is often said that the peculiar duty of the executive department is to enforce the laws made by the legislative department. By state constitutions it is usually provided that the executive shall take care that the laws are faithfully executed ; and there is such a provision in the federal constitution (Art. II, § 3). It is also provided that the presi- dent shall take an oath to faithfully execute his office, and to the best of his ability preserve, protect, and defend the . consti- tution of the United States (Const. Art. II, § i, IT 7). The practical execution of the laws rests, however, more directly with the judiciary than with the executive department. It is for the courts to determine whether a law has been violated in a particular case, and what the redress or punishment shall be. If the authority of the court is resisted, then it is the function of the executive department to employ the power of the govern- ment, even the military power, if necessary, to uphold the au- thority of the courts and carry out their judgments ; so that it is proper to say, in a general sense, that the ultimate power to enforce the laws is with the executive {In re Neagle). The question has been mooted whether the president in the enforcement of the laws may take into account their constitu- tionality and disregard those which he believes to be unconsti- tutional. As to those acts which are purely executive and which are not subject to review by the courts, it is plain that the president must act on his own judgment and responsi- bility ; but on the other hand, as to the interpretation of the constitution which has been announced by the judiciary in cases properly coming before that department, he should acquiesce 202 Administrative Functions. [§123 in the decisions of the highest judicial tribunal. President Lincoln practically disregarded the Dred Scott decision in the policy of his administration with reference to slavery, and he was no doubt justified in doing so, for that decision had not and could not have any direct bearing on the duties of the ex- ecutive department. In the enforcement of the law it may become necessary for the president to use the military power, not only in securing obedi- ence to the decisions of the courts, but also in preventing inter- ference with the performance of governmental functions or the carrying on of governmental operations. For instance, if the transportation of the mails or the carrying on of interstate "or foreign commerce is interfered with, he may undoubtedly employ such military force as is necessary to remove such inter- ference. (See above, § 93.) The executive department is not bound to suspend the discharge of the duties with which it is vested until by judicial proceedings a remedy may be afforded. The president may use the military forces of the United States under such circumstances without being called upon by the legislature or governor of the State [In re Debs). 123. Appointment of Officers. In many of the states the principal executive oiHcers subordi- nate in rank to the chief executive are chosen by popular elec- tion. But many other subordinate ofificers are provided for, usually appointed by the governor, although the method of selection is of course determined by the constitutional or statu- tory provisions under which the offices are created, and selec- tion by the legislature or appointment by other authority is to some extent provided for. In the federal government only the president and vice-presi- dent are elected, and the vice-president is an executive officer only in case he is called upon to perform the functions of the president on the removal of the latter from office, or his death, resignation, or inability. (See above, § 41.) The function of the vice-president as presiding officer of the Senate is not in any sense executive. §123] Appointment of Officers. 203 Under the federal constitution (Art. II, § 2, ^ 2) it is pro- vided that the president " shall nominate, and by and with the advice and consent of the Senate shall appoint, ambassadors, other public ministers and consuls, judges of the Supreme Court and other officers of the United States whose appointments are not herein otherwise provided for and which shall be established by law." The ambassadors, public ministers, and consuls may be regarded as officers of the executive department discharging its functions in the diplomatic relations of this country to for- eign countries, while the judges of the Supreme Court belong exclusively to the judicial department. In fact, all the impor- tant officers of the judicial department are by law appointed by the president. In the same section it is provided that Congress may by law vest the appointment of such inferior officers as it thinks proper in the president alone, in the courts of law, or in the heads of departments. There has been some controversy as to the power of the president to remove the officers whom he is authorized to ap- point. Judges of the federal courts are appointed for good behavior, and can only be removed by impeachment. Other officers appointed by and with the advice and consent of the Senate are in effect removed by the appointment of a successor and the approval of such appointment by the Senate. During the recess of the Senate the president is expressly authorized to fill vacancies by granting commissions, which shall expire at the end of the next session, and it seems that the president may for this purpose declare whether a vacancy exists which he has authority thus to fill, and thereby in effect remove an officer. If during the ensuing session no appointment to such position is approved by the Senate, then at the end of the session there is again a vacancy in such office, which the president may fill by appointment, to expire at the end of the following session. The president does, therefore, in fact, exercise the power of removing from office even the officers who are ap- pointed by and with the advice and consent of the Senate. Indeed, it seems to be generally conceded that all appointive officers who are not entitled by the Constitution to hold their 204 Administrative Functions. [§ 124 offices for life are removable by the appointing power, and that, in case of officers who are appointed with the approval of the Senate, the power to remove is in the president alone. Congress may provide, however, as to the qualifications of subordinate executive officers, the conditions on which they shall hold their offices, and the grounds on which they shall be removed ; for as the offices themselves are not provided for by the constitution, but are created by law, the same power which creates them may prescribe the conditions on which they shall be filled. 124. Pardons. The legislative department, in the exercise of its discretion, defines crimes and provides for their punishment. (See above, ch. X.) The courts determine whether a person charged with violation of the criminal law is guilty and prescribe his punishment. The executive department not only sustains the officers of the court in enforcing the punishment imposed, but exercises the independent function of suspending or annulling the punishment by reprieve or pardon. This independent power is in England recognized as one of the attributes of sovereignty, which, so far as the punishment for crime is con- cerned, has not been delegated to the judiciary, and under the federal and state constitutions it is preserved as one of the functions of the executive department. State constitutions vest this power in the governor or an executive board, and the federal constitution expressly gives it to the president (Art. II, § 2, 1[ i). It is to be noticed, however, that the power of the president to reprieve or pardon relates only to crimes committed against the federal government. He has no power to interfere with the execution of the laws of the states. And it is to be further noticed that the power of the president in this respect does not extend to punishment imposed on a public officer by impeachment. The power of the president to pardon extends to every offence known to the federal law, and may be exercised by him at any time after its commission, either before legal proceedings § 124] Pardons. 205 are taken or during their pendency, or after conviction. It may be exercised by granting the pardon in a particular case, or by a general pardon or amnesty proclamation as to classes of persons who have been guilty of crime against the United States. Congress can neither limit the effect of a pardon nor exclude from the exercise of the pardoning power any class of offenders, and unconditional pardon not only relieves the offender from punishment, but extinguishes the consequences of his guilt, whether civil or criminal, so that after pardon the offender is free from the legal effects of his crime as fully as though no offence had been committed. Congress, on the other hand, may attach as a condition or qualification to the holding of an office that the person to be appointed has not been guilty of certain specified crimes, and the president's pardon will in such case not remove the dis- qualification. But in the cases of Cummings v. Missouri and In re Garland, it was held that neither by state constitution nor statute, nor by act of Congress, could a course of conduct which was not criminal at the time it was pursued, nor an offence for which a full pardon has been granted subsequendy be made a ground of disqualification for holding office, as the effect would be to impose a penalty or an additional penalty by a subsequent statutory provision. Such legislation would be ex post facto in its nature and contrary to the express prohibitions of the fed- eral constitution. (See above, § 59.) A pardon may be granted upon conditions, and the immu- nity from punishment accorded thereby will continue only so long as the conditions imposed are complied with. A reprieve is not a conditional pardon, but a temporary suspension of punishment, and after the term of the reprieve has expired, punishment may be inflicted as though no reprieve had been granted. CHAPTER XXI. LEGISLATIVE FUNCTIONS OF THE EXECUTIVE; VETO POWER. 125. References. J. Story, Constitution, §§881-893, 1560-1564; J. I. C. Hare, Constitu- tional Law, 211-213; J. R. Tucker, Constitution, §§ ZI3, 214, 360; J. N. Pomeroy, Constitutional Law, §§ 174-179, 697-702; James Bryce, Amer- ican Commonwealth, ch. vi ; The Federalist, No. 73 ; A. B. Hart, Actual Government (Amer. Citizen Series), § n8 ; E. C. Mason, The Veto Po^ver ; E. C. Mason, Calls for Information from the Executive (Amer. Hist. Assoc, Papers, i8gi, 367). 126. Executive Approval or Veto. It is provided in all the state constitutions except two, as it is in the federal constitution (Art. I, § 7, ^^ 2), that bills which have passed both branches of Congress or of a state legislature, as the case may be, shall be presented to the president or the governor, who shall sign them, if in his judgment they should be approved ; otherwise he returns them with his objections to that house of Congress or of the state legislature in which they shall have originated. Such a return of a bill with objections is usually called a veto, and in some state constitutions that term is expressly used. A bill thus returned may become a law by being again passed by both branches of the legislature over the objections of the executive, which passage, however, according to the federal constitution, must be by a two-thirds vote of each house ; and similar provisions are found in the state constitutions. When a bill has thus been passed, it be- comes effectual without further action on the part of the executive. It is generally provided in the state constitutions, as it is in the federal constitution, that the retention of a bill for a speci- zo6 § 127] Approval or Veto. 207 fied time without approval or return by the executive shall be construed as an approval, and such a bill becomes a law as effectually as though it had been approved. On one point, however, there is great diversity, that is, as to the effect of the retention by the executive without approval until after the adjournment of the legislative body, the time fixed by the con- stitution for the return of the bill not having expired when the legislative body adjourns ; and this matter is of great practical importance, for it is a common occurrence that the most im- portant bills are not finally acted upon by the legislative body until within a few days of adjournment, so that the time fixed after which the bill shall become a law without approval if not returned with objections does not expire before adjournment. The practical construction put upon the provisions of the federal constitution in this respect is that bills which have not received the president's approval, or have not been returned by him with objections and passed over his veto, before the ad- journment of Congress, cannot become effective, no approval of the president after the adjournment of Congress being con- sidered sufficient. But by the provisions of some state consti- tutions, the governor may, within the time specified by the constitution, approve a bill so as to make it effectual as a statute after the legislative body has adjourned. 127. Exercise of Executive Discretion tcward Legislation. In the approval or veto of a bill presented, the executive is not limited to the mere determination of whether the bill, if it becomes a statute, will be valid or constitutional. The execu- tive may take into account all those considerations which may properly influence the members of the legislative body in deter- mining whether they should favor or oppose the proposed legis- lation. In the exercise of his functions in this respect, the president or the governor acts in reality as a branch of the legis- lative department. He exercises substantially the authority which, under the constitution of England, is exercised by the king with reference to legislation, subject, however, to the limita- tion which was a feature novel in forms of government, that the 2o8 Executive and Legislation. [§ 128 proposed bill may become a law upon passage over the executive veto by the requisite majority of each branch of the legislative body. In practice the president or a governor actually exercises greater authority than is now exercised in this respect by the king of England, for in England the sovereign since 17 15 has uniformly approved all bills which have been presented to him by Parliament. The English practice results from the custom prevailing there that the king acts only through the ministry, composed of ofiScers appointed by him from the dominant party in Parliament, so that the measures favored by the minis- try, as it is called, are the measures which receive the approval of Parliament, and, therefore, will likewise receive the approval of the king. In other words, the king, in his relations with Parliament, does not exercise his individual will or judgment, but adopts the judgment of the officers who represent him, and who are selected for the reason that they can secure the approval of Parliament for the measures which they propose. Under the constitutional system of the United States, the chief execu- tive, whether president or governor, has an individual respon- sibihty, and exercises an independent judgment ; and while it is likely that, being an elective officer, his political views will correspond with those of the majority in the legislative body, it by no means follows that he will necessarily approve all measures which have received the support of the majority in each branch of the legislative body. 128. Executive Recommendations as to Legislation. The participation of the chief executive, whether president or governor, in matters of legislation, is not limited, however, to the exercise of the veto power. The president is directed to give to Congress, from time to time, " information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient" (Const. Art. II, § 3), and similar provisions are found in state constitutions with reference to the governor. Accordingly, it is the practice for the executive to indicate in a message to the legislative body § 128] Discretion and Recommendations. 200 at the beginning of each session such measures of legislation as he deems important to be considered, and he may at other times, in special messages, propose other measures for their consideration. These measures are not, however, officially pro- posed in the form of statutes, but by way of recommendations, in order that appropriate bills may be framed and passed by the legislative body, if the majority of the members thereof approve of the proposed legislation. By the same section of the federal constitution it is provided that the president may, on extraordinary occasions, convene both houses of Congress in extra session, or, in case of dis- agreement between them as to the time of adjournment, may adjourn them to such time as he shall think proper, and similar provisions are found in state constitutions. There has been little occasion to exercise the power to adjourn, but the power to call extra sessions when some emergency arises rendering legislative action important is frequently resorted to. 14 CHAPTER XXII. MILITARY POWERS. 129. References. J. Story, Constitution, §§ 1490-1492; J. R. Tucker, Constitution, § 363; J. N. Pomeroy, Constitutional Law, §§ 703-714; The Federalist, No, 74; A. B. Hart, Actual Government (Km&r. Citizen Series), §§ 201, 202 ; Mar- tin V. Mott (1827, 12 Wheaton, 19; 7 Curtis' Decisions, 10; McClain's Cases, 518; Thayer's Cases, 2290), Luther m. Borden (1848,7 Howard, I ; 17 Curtis' Decisions, i ; McClain's Cases, 595 ; Thayer's Cases, 191). 130. President or State Executive as Commander-in-Chief. Perhaps no function of the president or chief state executive is more significant as indicating his independent and exalted position than that of being the commander-in-chief of the army and navy of the United States and of the militia of the sev- eral states when called into the actual service of the United States, in the case of the president (Const. Art. II, § 2, ^ i), or commander-in-chief of the state militia in the case of a state executive. As already indicated in the chapter relating to the war power (see above, § 114), Congress is authorized to make rules for the government and regulation of the land and naval forces, but the command of these forces and the enforcement of the rules for their government are vested in the president. The governor of a state is given similar authority with reference to the state militia. It is not intended that the president or a governor shall take active command of the military forces of the United States or of a state in time of hostilities. He is essen- tially a civil officer. But the military or war department is a branch of the executive department, and the chief executive is therefore necessarily its head. As the head of the executive department, the power of de- claring martial law, that is, of putting the military power for the 210 § i3i] Protection of the States. 211 time being in superiority to the civil povver, is in the president, in the case of the United States, and in the governor in the case of a state. In the federal constitution this power is limited by the provision that " The privilege of the writ of habeas corpus shall not be suspended unless when in case of rebellion or in- vasion the public safety may require it " (Art. I, § 9, 1[ 2). The existence of martial law is regarded, however, as but a temporary condition arising from necessity. (See above, § 115.) The civil power of the government and the jurisdiction of its courts are not to be permanently abrogated, but so soon as the condition of necessity ceases to exist, the civil power, which has been temporarily suspended, is restored to supremacy. 131. Protection of the States against Invasion or Domestic Violence. With reference to the protection of the state governments and interference in state affairs, the government of the United States has no other authority than to " guarantee to every state in this Union a republican form of government," and "protect each of them against invasion ; and on application of the legis- lature, or of the executive (when the legislature cannot be con- vened), against domestic violence " (Const. Art. IV, § 4). The duty to guarantee a republican form of government does not, perhaps, rest especially on the president ; but, as the head of the military and naval forces of the United States, it is within the scope of his duty to give protection against invasion and domestic violence, and Congress by act of 1795 provided for the exercise by him of this function. He may call out the militia of other states for this purpose, and, as the final and conclusive authority, must determine whether an emergency exists requiring the exercise of his authority. (See Martin v. Mott^) It may be necessary for him to determine whether there is a state government, and, as between conflicting claims of different persons or bodies, who is the lawful executive of the state and which is the lawful legislative body thereof. These are among the political powers of the federal government, and such powers are necessarily in the executive rather than in the 212 Military Powers. [§ '31 legislative or judicial department. Each department, however, can determine questions of this character, necessarily arising before it in the discharge of its duties. Thus, the Senate of the United States may have to determine which of two senators elected by rival state legislatures is entitled to a seat as senator from the state ; and the judicial department may find it neces- sary, in a suit brought by a state, to determine whether the government purporting to act for the state in bringing such suit is the lawfully authorized government of the state. But so far as the president is called upon, in the discharge of his duties, to determine the legality or illegality of a state government, his action cannot be overridden or reviewed by either of the other departments of the federal government. It is to be noticed that there is a distinction between the power of the president to protect a state against invasion and domestic violence and his power to enforce the laws of the United States. (See above, § 122.) In the one case he acts only upon the call of the state government, in the other he acts under his authority as chief executive of the United States to see that its operations are not interfered with or hindered, and with reference to the discharge of his duties in this respect the request of the state government is wholly immaterial and its protests would be unavailing. The authority of the president in enforcing the laws of the United States cannot be made to depend upon state action. CHAPTER XXIII. DIPLOMATIC relations:; TREATY-MAKING POWER. 132. References. J. Story, Constitution, §§ 1505-1523, 1 565-1 568 ; J. R. Tucker, Comtitu- iion, §§ 353-356, 361 ; J. N. Pomeroy, Constitutional Law, §§ 669-6S1 ; The Federalist, No. 75; C. H. Butler, Treaty-Making Power; A. B. Hart, Actual Government (Amer. Citizen Series), ch. xxiii ; H. W. Rogers, Treaty-Making Power (Amer. Bar Assn., Proceedings, 1893, P- 243 ; North-western Law Rev., II, i) ; J. W. Burgess, Federal Government and International Responsibility (Pol. Sci. Quart.), vi. 338; E. W. HufEcut,/»- ternational Liability for Mob Injuries (Amer. Academy of Pol. Sci., Annals II, 69) ; Jonesy. United States (1890, 137 U. S. 202 ; McClain's Cases, 590 ; Thayer's Cases, 364) ; Haver v. Yaker (1S69, 9 Wallace, 32; McClain's Cases, 581) ; People v. Gerke (1855, 5 California, 381 ; McClain's Cases, 583) ; Head Money Cases (1884, 112 U. S. 5S0; McClain's Cases, 587 ; Thayer's Cases, 758); The Cherokee Tobacco (1870, 11 Wallace, 616); Foster v. Neilson (1829, 2 Peters, 253) ; Chinese Exclusion Case, Chae Chan Ping v. United States (1889, 130 U. S. 581 ; McClain's Cases, 562). 133. Executive Authority in Biplomacy. The states can have no relations whatever with foreign gov- ernments (Const. Art. I, § 10, H i). Toward foreign powers, the United States collectively constitute one single power, rep- resented by the federal government, and the relations between that government and foreign governments are through the executive department and in the name of the president as chief executive. Congress cannot deal with foreign powers, and the courts can only take cognizance of their existence and rights by recognizing, interpreting, and applying the action of the execu- tive department, evidenced by treaties or otherwise. The action of the executive department in determining in a contro- versy with a foreign government whether certain territory is territory of the United States cannot be interfered with by the courts. (See y^ones v. United States.') So also it is for the executive department to determine whether this government ?i3 214 Diplomatic Relations. [§ 134 will recognize as an independent sovereign power a foreign state claiming such recognition. In short, the entire diplo- matic relations between this and other countries are under the control of the executive ; and the action of the executive in such matters is binding upon Congress, the courts, and all federal and state officers. 134. Executive Authority as to Aliens. The power to determine the relations between this govern- ment and other governments extends also to the determination of the rights and privileges which shall be accorded to the sub- jects of foreign governments, either in relation to property within the jurisdiction of this government, or the personal privi- leges which shall be accorded to them within the limits of the United States. As will appear in the next section, these rights and privileges may be determined by treaty. But in the ab- sence of treaty provisions, the presence of aliens within the limits of the United States is within the control of the executive department. Congress, in the exercise of the legislative power, may provide for the exclusion of aliens, or the deportation of aliens who have been permitted to come within the limits of the United States but have not acquired or are not permitted to acquire the rights of citizenship. The enforcement of the regulations made by Congress rests with the executive, primarily, and not with the courts. While the policy of the federal government has in general been to permit aliens freely to come into this country, and re- side here, enjoying the same personal and property rights as citizens, this policy has been within recent years modified in two important respects: (i) by excluding immigrants who be- long to the criminal classes or are likely to become charges on the public, or are afflicted with contagious diseases so that their admission would imperil the general health, or who are brought in under contract binding them to service ; (2) by ex- cluding the Chinese, whose presence in large numbers was thought to be inimical to the general public welfare. The restrictions on immigration might be supported under § i3S] Executive Authority. 215 the power of Congress to regulate commerce with foreign na- tions (see above, § 93), but the total exclusion of the Chinese, and provisions for the deportation of persons of that nationality who refuse to comply with certain regulations as to their resi- dence in this country, rest on a higher power than that involved in the regulation of commerce, and can be supported only on the theory that the federal government may control not only the relations of this government with foreign governments, but also the relations of this government with the subjects of foreign governments [Chinese Exclusion Case). 135. Treaty Power. A treaty is a compact between two independent governments, determining rights or privileges between them as sovereigns ; or between each and the subjects of the other; or between the subjects of one and the subjects of the other. In the United States the treaty-making power is vested by the con- stitution in the president, who negotiates the treaty through the regular diplomatic representatives of the government, or special representatives appointed for the purpose ; but it does not become a complete treaty except by the advice and con- sent of the Senate, concurrence of two-thirds of the senators present when the treaty is acted upon being necessary to its approval (Art. II, § 2, IT 2). Even then it must be promulgated by the executive department after it has also been ratified by the other contracting power. A treaty may be self-executing, or it may involve legislative action in order that its provisions may be carried into effect. In the latter case the necessary legislation must be provided by Congress, and the House of Representatives, by refusing to concur in legislation proposed for that purpose, may defeat the execution of the treaty. While it may perhaps be said that it is in a general sense the duty of Congress to carry out the provisions of a treaty by necessary legislation, and the national honor may require that it do so, nevertlieless that is a matter for the exercise of legislative discretion, and if the House of Representatives refuses to act, or imposes conditions not in- 2i6 Diplomatic Relations. [§ 136 eluded in the treat}- itself, there is no means provided for con- trolling its action. Thus, if a treaty involves the payment of money, it can only be carried out by tiie concurrence of the House of Representatives in an act appropriating money from the public tre.isury tor the purpose. The treaty-making power is practically without limit, so far as it is exercised with reference to matters which may be regu- lated by tre.ity, and it extends to all proper subjects of negotia- tion between our government and the governments of other nations. Its limitations are to be found only in its nature and the nature of the federal government, as defined b\' the federal constitution. It could not be used for the purpose of changing the cliaracter of the federal government, or determining its rela- tions with a state government. But whatever limitations there may be on the treaty-making power, they are implied, and are nowhere expressed in the federal constitution. 136. Treaties are a Fart of the Iia-vr of the Iiand. Being compacts between governments, treaties are not usually regarded as a part of the internal or municipal law of either of the governments which are the parties thereto. But it is ex- pressly provided in the federal constitution that "all treaties made or which shall be made under the authority of the United States " shall be, like the federal constitution and the laws of the United States made in pursuance thereof " the supreme law of the land ; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding" (Const. Art. VI, *^ 2\ There- fore, rights and duties of persons, as well as the rights and obli- gations of the government, may be directly aftected by treaties ; and such rights and duties, so far as the\- are granted to or imposed upon individuals, nia\- be protected and enforced in the courts. The provisions of a treaty which it is within the power of the federal government to make will be superior in authority to any state statute relating to the same subject-matter. Thus, as the rights of the subjects of foreign governments to acquire by purchase or inheritance property within the limits § 1,^6] Treaties. 2 1*^ of ll\i> Ututoil Slates is a proper subject to bo logulaloil by treaty between this govenmient nnil siieb foreign governments, the states eai\nol liy legislation de|iri\e the subjeels of foreign goveini\ienls of propeily rights gnarantoed to them by treaty. It is within the general power of the stales to determine to what exteiU, if ;it all, aliens may aetiuire and enjoy inoperly rights inuler stale laws. In many stales non-resident aliens are forbidden trom aeqniring real properly by purehase or inheri- tanee. Ne\ erlheless, so far as sneh slate slalntes may interfere with the rights of an alien muler a treaty between this govern- ment and the gov erniiient of which such alien is a subject, the state law nwist give way, and if under the treaty the alien is en- titled \o acquire or own properly, by inheritance or otherwise, he may enjoy that right, and it will be protecleil by the courts, although it is in contravention of the l,>w of the state where the proiH'riy is situated (/V('//f* v. CV/'/yV Another result of declaring a treaty to be the law of the land is that it stands on the san\e footing in this respect with an act of (."ongress. It is the general rule, as between two statutes which are in conllict, if they are enacted by the same authority, that the one later in tiu\e will control, being ileemed in this respeit and to the evtent to whiih the two are in conflict to be a repeal of the former, l.ikewise, as between two treaties, made between the same contracting powei"s, the later in tin>e will contri>l or supersede, so tar as they are inconsistent, the former. It is to be bvune in mind that a statute enacted by (."ongress is not a part of the law of the land unless it is consis- tent with and enacted under the autlunity of the constitution, so that there aie no doubt some subjects, such as the right of an alien to acquire or inl\erit property, which cannot be regu- lated by Congress, although tliey may be controlled by treaty. In such a case there could be no conflict between the treaty and the st.Uule, for the statute would be m>constitutional. .■\s between a treaty and a statute which is enacted by Con gress in the exercise of son\e express or implied power eon- tcrred upon it, the later in point of time is controlling, and this will be true even though in the enactment of the statute (."on- 21 8 Diplomatic Relations. [§ 136 gress has violated the treaty obligations of the government to the foreign power with whom the treaty is made. Thus, if there were a treaty between this government and the Chinese government by which the subjects of the latter were entitled to come freely into the United States, Congress would have the power, notwithstanding the treaty, to exclude Chinese subjects. (See Chinese Exclusion Case^ As between this country and China such a statute would be a violation of treaty obligations ; but redress for such breach of faith would be secured by diplo- matic negotiations between the two countries. The courts would recognize the statute, being later in point of time, as controlling so far as any judicial questions could arise. On the other hand, the treaty-making power may abrogate a statute and the courts would be bound to recognize the treaty, being later in point of time, as superseding the statute, so far as it was applicable to the subject-matter controlled by the treaty. It is apparent, therefore, that while the executive department is supreme in determining the relations between this and foreign countries, it may not be able to carry out its agreements so far as they involve either legislation by Congress or the action of the states. This inability of the executive department in its relations with foreign governments to carry out its obligations is due to the fact that no one department of the federal govern- ment is sovereign with reference to the other departments, and the further fact that the federal government is in itself a govern- ment of limited powers. With reference to the latter point it has already been noticed (see above, § 49) that the general pro- tection of persons and property within state limits depends upon the laws of the state. If, therefore, an alien is denied in any state the proper protection of the law, his government may justly make complaint to the federal government, but the fed- eral government can give no redress unless it be by way of pay- ment of damages to the subject of the foreign government who is thus denied the protection of the law. Perhaps Congress might and should by statute give protection to aliens in their personal and property rights ; but thus far it has failed to do so in any effectual manner. Part V. The Judiciary. CHAPTER XXIV. GENERAL NATURE OF JUDICIAL POWER. 137. References. J. Story, Constitution, §§ 1573-1579 ; T. M. Cooley, Constitutional Limi- tations, ** 397-414 ; J. I. C. Hare, Constitutional Law, lect. viii ; J. R. Tucker, Constitution, ch.xiii ; J. N. Pomeroy, Constittttional Law, §§ 729- 739 ; James Kent, Commentaries, lects. xiv, xviii ; The Federalist, No. 78 ; James Bryce, American Commonwealth, chs. xxii, xlii ; J. W. Burgess, Political Science, and Constitutional Law, II, 320-366. 138. The Judiciary in G-eneral. In those countries in which Anglo-Saxon institutions prevail, the independence of the judiciary and the importance of its functions are very fully recognized, and under our constitutional system they are peculiarly emphasized. Although the courts have no military force directly at their command, and no treasury from which to appropriate money, nevertheless their decisions in the cases coming before them, although they may involve questions of the greatest importance, not only to individuals but to the public, are almost always acquiesced in and carried out. The judicial department is ultimately dependent on the execu- tive department to enforce its judgments if resisted, and upon the legislative department for the appropriation of the funds necessary to enable it to continue in existence and discharge its Z19 220 Judicial Power. [§ 138 functions ; but the general respect for law, and the conviction that the rights of the people are better protected by an orderly administration of justice than in any other way, gives to the judiciary a popular support, notwithstanding criticism or dis- satisfaction as to the result reached in particular cases, and enables it with confidence to rely upon all the executive and legislative assistance which may be necessary. On the other hand, the total inability of the courts to do more than render judgments, which must be dependent for enforcement, if resisted, on the action of the executive department, and their obligation to apply the law as it exists, subject to any change which the legislative department may see fit to make within constitutional Hmits if the law as administered is found to be unsatisfactory, constitute an ample safeguard against any revolutionary or tyrannical use by the courts of the independent power vested in them. The functions of the judicial department are discharged by courts created by law, and courts can only decide cases which are properly brought before them. A case brought before a court is said to be within the jurisdiction of the court if it is one which by law the court is authorized to try, and which, in the particular instance, is so submitted to it that it may be tried. It is often said that,'to authorize the determination of a case in a court, the court must have jurisdiction of the subject-matter and of the parties. But by such a statement is simply meant that the case must be one of a class of cases which by law the court has authority to determine ; and that the particular case is brought by one having the right to sue in the court, and that the party against whom a decision is asked is served with notice or otherwise brought into court in such way that he is bound to present his defence. It would be going beyond the proper scope of a treatise on constitutional law to discuss at length and in detail the subject of jurisdiction ; it is sufficient to say that, when a case is prop- erly within the jurisdiction of a court to decide, its decision is conclusive on the rights of the parties as to the matter presented, save as it may be subject to review by some higher § 139] State Judiciary. 221 court, and cannot be questioned by either of the other de- partments of government. On the other hand, the courts have no power to determine any other questions than those presented to them in controversies between parties ; and they cannot, therefore, interfere, except in particular cases in which the rights of individuals are involved, with the discharge of their functions by the other departments. It is true that a decision of a court interpreting the constitution or the law is properly regarded as a precedent, which ought to be followed by the other departments, as well as by other courts of the same or an inferior grade in similar cases. But the decision of a court is a precedent of controlling effect only because of the power which the courts may have to decide similar cases in the same way ; as to a matter which cannot come before the courts for adjudication, the decision of a court is not binding on the legis- lative or the executive department, although it may properly be given weight and respect as expressing views which are entitled to the highest possible consideration. (See also above, § 7.) 139. The Judiciary of the States. The general function of deciding legal controversies in cases properly presented is one which pertains to and is exercised by the courts established in each state. It is to be borne in mind that the general powers of government, which include the exer- cise of judicial power, are exercised by the state governments, and that only so far as these powers are conferred on the federal government is the power of the state judiciary hmited by the federal constitution. It would not be practicable here to describe in detail the judicial departments of the state governments, for their organi- zation and methods of procedure are various, depending on the constitution and laws of the respective states. It may, however, be pointed out that in each state there is a system of courts, which may be roughly classified as courts of inferior jurisdic- tion, courts of general original jurisdiction, and courts of appellate jurisdiction. (i) The courts of justices of the peace, and police or other 222 Judicial Power. [§ 139 city courts, are examples of courts of inferior jurisdiction ; their powers are limited to the trial of particular classes of cases of an inferior grade ; that is, in civil cases, controversies involving a comparatively small amount, and in criminal cases the trial of prosecutions for offences of a minor character. (2) Courts of general original jurisdiction are those in which any case cognizable by the judiciary may be tried, so far as their jurisdiction is not restricted by provision of law. They are the ordinary courts for the trial of lawsuits. They are presided over by judges who exercise the judicial power, assisted by officers, such as a clerk or recorder, and a sheriff or marshal, who perform the ministerial functions of the court. (3) Courts of appellate jurisdiction are those having author- ity to review the decisions of courts inferior to them in grade, and to determine whether an error has been committed or an erroneous conclusion reached in the trial of a case in which an appeal has been taken ; for our judicial system is constructed on the theory that in important cases there should be not only a trial, but an opportunity to the unsuccessful party to have the decision reviewed by other judges in a court of higher rank, in order that ultimate justice, as determined by the law, shall be carefully and deliberately administered and the rules of law applicable to such cases fully announced to serve as precedents in other cases. While it is important on the one hand that a party seeking the protection of his rights or redress for his wrongs shall have speedy justice, yet it is equally important, on the other hand, that there be such care and deliberation and opportunity for the avoidance of possible error, as that the justice administered be not hasty, but the result of due con- sideration after full opportunity for investigation. A court of inferior jurisdiction or of general original jurisdiction is presided over by one justice or judge, while a court of appellate jurisdic- tion is composed generally of not less than three judges, sitting together and consulting as to the decision to be rendered in each case. § ho] Law Administered. 223 140. The Law Administered in the State Courts. It must not be understood that because the courts of a state constitute the judicial department of the state government they cannot take cognizance of any other law than that found in the constitution and statutes of the state. It is the function of a' court to decide cases, and to apply the law governing the case, whatever it may be. Much of the law of any state or nation is so-called unwritten law ; that is, it consists of rules and principles not embodied in constitutions or statutes ; and if the . questions in a case depend for their determination upon rules of unwritten law, it is for the court to decide what those rules are, resorting for that purpose to the principles announced in other cases in the same state, or by courts in other states recog- nizing the same general system of jurisprudence. ' Moreover, the federal constitution, treaties, and statutes are the supreme law of the land as to all matters to which they are applicable, and binding upon the judges of the state courts as well as upon the federal judges (Constitution, Art. VI, f 2). And if the determination of a case before a state court involves the appli- cation of the federal constitution, treaties, or statutes, it is the duty of that court to make the application and decide the case with reference thereto. The jurisdiction of a state court does not depend upon the kind of law to be administered, but upon the nature of the case itself, and it will hereafter appear that many cases are of such nature that they may be tried either in a state or federal court at the election of one or the other of the parties. (See below, §§ 143, 156-158, 170.) CHAPTER XXV. JURISDICTION OF THE FEDERAL JUDICIARY. 141. References. J. Story, Constitution, §§ 1573-1579; J- I- C. Hare, Constitutional Law, lects. xlv-xlix ; J. R. Tucker, Constitution, ch. xiii ; James Bryce, Ameri- can Commonwealth, ch. xxii; J. N. Pomeroy, Constitutional Law, §§ 740- 746; T. M. Cooley, Constitutional Law, ch. vi ; The Federalist, Nos. 81, 83; Cohens V. Virgiitia (1821, 6 Wheaton, 264; 5 Curtis' Decisions, 82 ; Thayer's Cases, 285 ; Marshall's Decisions, Dillon's ed., 357); Martin V. Hunter's Lessee (1816, I Wheaton, 304; 3 Curtis' Decisions, 562; McClain's Cases, 746). 142. Necessity for Federal Courts. It is apparent from what has been said in the preceding chapter relating to the general jurisdiction of the state courts, that it would have been possible to provide for a federal gov- ernment without a judicial department , for all cases, whether involving the federal or state law, might have been tried in the courts of the states. Under the Articles of Confederation there was no provision whatever for a federal judiciary. But, on the other hand, a sovereign government would be lame and im- potent indeed which should depend for the interpretation of its constitution and statutes, and the determination of the powers of its departments, so far as they might be judicially called in question, upon the decisions of the courts of the respective states of which it should be composed. An immediate and practical difficulty would be that the courts of the different states might well entertain diverse views as to the construction of the constitution and statutes of the United States, and the federal law, which is the supreme law of the land, might in fact be one thing in Massachusetts and another thing in Virginia. It was therefore essentially necessary to the stability and per- 224 § 142] Necessity for Federal Courts. 225 petuity of the Union that there should be federal courts, in which the rights of parties depending upon the constitution and statutes of the United States could be ultimately decided, in accordance with some consistent rule receiving uniform recog- nition throughout the United States. For some other purposes, also, it was essential that there should be federal courts. For instance, it would greatly em- barrass the relations of the federal government with foreign governments if the ambassadors, public ministers, and consuls of foreign countries, while in this country, should be subject to the jurisdiction of courts not constituting a part or department of the federal government. Moreover, as to navigation on the high seas, it is important that there be federal courts to deter- mine controversies relating thereto, for the ships of the United States, while on the high seas, are deemed a part of United States territory, although they are beyond the jurisdiction of any state. Furthermore, it is important that there be courts in which the federal government may prosecute crimes against the laws of the United States, and bring civil suits, in the public interest, against individuals ; and it would be embarrassing and incon- venient for that government to be compelled to prosecute these suits in state courts. In these classes of cases, at least, it is essential to the dignity and sovereignty of the federal govern- ment that there be federal courts in which such controversies may be determined. But there are other classes of cases in which it may be de- sirable that there be a tribunal other than the state courts for the determination of controversies in which the federal govern- ment has not essentially any direct interest. For instance, in controversies between two states respecting their boundaries it would not be expedient to allow the courts of either state to render a final decision. It could not be expected that either state would be satisfied with a decision in such a matter rendered in the courts of the other state. Likewise, in con- troversies between a state and citizens of another state, or between citizens of different states, or between citizens of a IS 226 Federal Jurisdiction. [§ 143 state and foreign states, citizens or subjects, it is highly de- sirable that the final jurisdiction should be in some court of higher authority than the courts of a state. In cases pertaining to any one of these classes last enumerated, the federal govern- ment has no direct interest, except to furnish a tribunal, im- partial as between the parties, and removed from suspicion of local influence, and whose decisions would be likely to com- mand the respect of the parties concerned. This branch of the jurisdiction of the federal courts may therefore be said to be required as a matter of expediency, although not essential to the sovereignty and independence of the federal government. 143. General Jurisdiction of the Federal Courts. The propriety of providing a system of federal courts in which cases of the various classes described in the preceding section might be tried, is recognized in the federal constitu- tion, and a judicial department is provided, to consist of one supreme court and such inferior courts as Congress may from time to time ordain and establish (Const. Art. Ill, § i). But while the courts thus provided are necessarily superior in authority as to the cases within their jurisdiction over any courts provided for by the states, on the other hand they are necessarily courts of limited and not of general jurisdiction. The judicial department of the federal government, Hke either of the other departments of that government, has only the povvers expressly or by implication given to it in the federal constitution, although in the discharge of the powers thus given it is supreme. Thus it may well be said that the courts of a state, having general jurisdiction, are presumed to have authority to decide any controversy of a judicial nature, not excluded from their jurisdiction by the state or federal constitution, while the courts of the United States have only authority to decide such cases as are expressly or by implication placed within their jurisdiction by the provisions of the federal constitution, or by statutes passed in accordance with authority given to Congress under that constitution. This practical difference, then, exists between § 143] In General. 227 a state court of general jurisdiction and any federal court, that any judicial controversy is presumed to be within the jurisdic- tion of such a state court until the contrary appears, while no case is presumed to be within the jurisdiction of a federal court unless it is made to appear that the nature of the con- troversy is such as to bring it within the jurisdiction of such court, as prescribed by the constitution and laws of the United States. In describing the federal courts and the jurisdiction of each, it will be necessary, therefore, to bear in mind that the cases of which a federal court may take cognizance must in the first place be of one of the classes of cases to which the judicial power of the federal government is extended by the federal constitution ; and secondly, in the case of any federal court, save the Supreme Court, the jurisdiction of which is to some ex- tent prescribed by the constitution itself, it must appear that the case is one which, by federal statute, is placed within the jurisdiction of the particular court in question. Congress can- not create courts exercising jurisdiction within the states be- yond the jurisdiction prescribed by the federal constitution. On the other hand, as to the particular courts which it is au- thorized to create, it may limit or apportion their jurisdiction in such way as it sees fit. It therefore follows that some of the cases falling within the general scope of jurisdiction of the fed- eral judicial power are not actually within the jurisdiction of any particular federal court, and in such cases the judicial authority to decide must remain exclusively with the state courts, simply because no federal courts have been created to determine such cases. As to the relations between the federal and the state courts, the fact that the case may be within the jurisdiction of the former does not necessarily exclude it from the jurisdiction of the latter. The state and the federal courts are independent of each other. But in any case in which a federal court is properly exercising its jurisdiction, its authority is necessarily superior to that of any state court, while on the other hand a state court may exercise general jurisdiction so far as in any 2 28 Fe'deral Jurisdiction. [§ 143 particular case it does not interfere with the exercise of power by a federal court. No doubt the federal government might, should it see fit, exclude the state courts from jurisdiction in any of the cases which, under the Constitution, are embraced in the general grant of judicial power to the federal govern- ment. But Congress has seen fit to exclude the jurisdiction of the state courts in only a few classes of cases falling within the scope of the federal judicial power; and to leave the others subject to the jurisdiction of the state courts so far as the latter do not interfere with the actual exercise of power in the particu- lar case by a federal court. It is not intended to indicate by this statement that a state court and a federal court may actually try the same case. It is a principle of general jurisprudence that when one court has acquired jurisdiction of a case, no other court will interfere while the case is pending, nor will any other court, except a court having appellate or supervisory jurisdiction, review, revise, or disregard the result of the trial of the case in the court having authority to try it. Therefore, in saying that as to many classes of cases the federal and state courts have concurrent jurisdic- tion, no more is intended than to indicate that a particular case of one of these classes may be in either a state or a federal court, depending upon the question where the case is actually brought on for trial ; and that, if such a case is actually brought in the court of a state, it may be finally and conclusively deter- mined in the courts of that state, although had it been properly brought in the first instance in a federal court it could prop- erly have been tried and finally determined in the federal courts. CHAPTER XXVI. CASES OF FEDERAL JURISDICTION. 144. References. In General: J. Story, Constitution, §§ 1637-1700; T. M. Cooley, Constitutional Limitatiotts, ** 11-15; J- I- C. Hare, Constitutional Law, lects. Iv, Ivi; J. N. Pomeroy, Constitutional Law, §§ 747-760; T. M. Cooley, Constitutional Law, ch. vi; H. C. Black, Constitutional Law, §§ 88-90. Cases arising under Constitution, Laws, ok Treaties of the United States: Osborne v. Bank of United States {1824, 9 Wheaton, 738; 6 Curtis' DecUions, 251; McClain's Cases, 617; Thayer's Cases, 1346); Pacific Railroad Removal Cases (1885, 115 U. S. i; McClain's Cases, 622) ; Southern Pacific Railroad Company v. California (1886, 118 U. S. 109; McClain's Cases, 624); Bock v. Perkins (1891, 139 U. S. 628 ; McClain's Cases, 626). Cases affecting Ambassadors, etc.. BSrs v. Preston (1884, in U. S. 252 ; McClain's Cases, 628). Cases of Admiralty: The Propeller Genesee Chief v. Fitzhugh, (1851, 12 Howard, 443 ; McClain's Cases, 648) ; The Steamboat Magnolia (1857, 20 Howard, 296; McClain's Cases, 650) ; Manchester v. Massachu- setts (1891, 139 U. S. 240; McClain's Cases, 655). Suits by or against the United States: Stanley v. Schxvalby (1896, 162 U. S. 255 ; McClain's Cases, 673) ; United States v. Texas (1892, 143 U. S. 621 ; McClain's Cases, 676 ; Thayer's Cases, 310). Suits against States : Ha?is v. Louisiana (1890, 134 U. S. i ; ■ McClain's Cases, 702 ; Thayer's Cases, 293) ; New Hampshire v. Louisi- ana (1883, 108 U. S. 76; McClain's Cases, 713) ; South Dakota v. North Carolina (1904, 24 Sup. Court Reporter, 269). Suits against Officers or Agents of United States or State: United States v. Lee (1882, 106 U. S. 196; McClain's Cases, 720) ; Louisi- ana v.Jumel (1882, 107 U. S. 711). Cases of Diverse Citizenship: Hepburn v. Ellzey (1805, 2 Cranch, 445 ; Thayer's Cases, 348 ; Marshall's Decisions, Dillon's ed., 48) ; Hooe \. Jamieson (1897, 166 U.S. 395; McClain's Cases, 734); The Ohio &= Mississippi Railroad Company \. Wheeler (i86l, i Black, 286; McClain's Cases, 737) ; St. Louis &• San Francisco Railway Co. v. James (1896, 161 U. S. 545 ; McClain's Cases, 739). 229 230 Federal Jurisdiction. [§ 146 145. Constitutional Enumeration. Bearing in mind the statement already made that no federal court can have jurisdiction of any case unless it is one of the classes of cases enumerated in the federal constitution as those to which the judicial power of the federal government may ex- tend, we have to consider briefly the enumeration of these classes of cases found in the federal constitution. In this enumeration (Const. Art. Ill, § 2) we find nine classes of cases, which are considered briefly in the following paragraphs of this chapter. ^146. Cases Arising under the Federal Constitution, LaTvs, and Treaties. The first and most extensive class of cases described as of federal cognizance, are those " in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority." The distinction here recognized between cases in law and cases in equity is of no particular significance for present purposes. In the jurisprudence of England, there were at the time our Con- stitution was framed, and still are, distinct courts of law and of equity, although in a general sense the courts of equity as well as the courts of law recognize and administer the law of the land. Law and equity in this sense are simply different divi- sions of jurisprudence. The distinction between law and equity depends on the nature of the case, or the nature of the relief which the court may grant, and is still recognized in some of the states, although in many states the same courts administer both law and equity. By the use of these two terms in the federal constitution, it was only intended to indicate that both law and equity may be administered in the federal courts, if the case is one otherwise coming within the jurisdiction of those courts. (See below, § 168.) The essential description of the cases within the class now under consideration is that they are cases arising under the constitution, laws, or treaties of the United States. Such a case § 146] Under Constitution and Laws. 231 may involve the construction of tlie federal constitution or a law or treaty of the United States, or it may involve the determina- tion of some right, privilege, or immunity under such constitu- tion, law, or treaty. In either event, it is a case as to which the federal judicial power may be exercised. For instance, if a person were being punished by state authority for violating some state statute, which statute was unconstitutional because in conflict with the provisions of the federal constitution, such person seeking relief as against the unlawful exercise of author- ity on the part of the state would have a case arising under the federal constitution. If one who has a patent from the United States entitling him to the exclusive use, manufacture, and sale of an invention should desire to bring suit against another who was infringing his right under such patent, the case would be one arising under the laws of the United States, for it is only under the United States laws that a patent may be granted and enjoyed, and the case would therefore be one within the possi- ble jurisdiction of the federal courts. If the subject of a foreign state had the right by treaty between his government and the government of the United States to inherit property in the United States, and his right to thus inherit was denied to him or questioned under the laws of a state, his case would be one arising under a treaty, and therefore one as to which the federal courts might have jurisdiction. It is to be noticed that it is not essential that cases of this class directly involve the interpretation of the federal constitu- tion, statute, or treaty ; it is enough if the right asserted be a right dependent upon such constitution, statute, or treaty. Thus, suits by or against federal corporations have been held to be cases arising under the laws of the United States, for a fed- eral corporation can only exist by virtue of federal law {Osborn v. Bank of United States and Pacific Railroad Cases). How- ever, national banks, although they are federal corporations, are by Congress prohibited from resorting to the federal courts on the ground that they are federal corporations, and must sub- mit to the jurisdiction of the state' courts in the same way as corporations organized under the authority of the states. But 232 Federal Jurisdiction. [§ 147 a detailed discussion of the cases which belong to this class is not practicable. It is enough to indicate their general characteristics. 147. Cases Affecting Ambassadors, etc. The second class of cases of federal cognizance embraces those " affecting ambassadors, other public ministers, and con- suls." These officers of foreign governments, while within the limits of the United States, are entitled, according to inter- national law, to some exemption from the ordinary jurisdiction of the courts. Ambassadors and other public ministers are the personal representatives of the foreign governments under whose authority they have come into the limits of the United States, so far as their public character has been recognized and acquiesced in by this government. By international law they are regarded, while thus authorized and recognized, as entirely exempt from the jurisdiction of the courts ; neither civil nor criminal suits may be prosecuted against them. The practical remedy for any wrongs which they may commit is to make complaint to the state department of the federal government, and, if sufficient reparation is not voluntarily made, the repre- sentative may be dismissed by this government, or on complaint to the home government of such representative, he may be recalled, and after having had reasonable opportunity to leave this country, may be treated as no longer entitled to any im- munity from procedure in the courts. So long as he is within the limits of the United States, as the recognized representative of a foreign government, the foreign minister according to international law is entirely outside of the jurisdiction of the courts. Therefore, the practical effect of this provision is to enable the federal courts to interfere, should any state court improperly attempt to exercise jurisdiction over a foreign ambassador or minister. As to consuls, however, the case is different. They are mere agents, not representatives of foreign governments, and are not exempt from the jurisdic- tion of our courts. And as to them, the result of this provision is to enable Congress to give jurisdiction with reference to them § 148] International and Admiralty. 233 to the federal courts, should it see fit to do so {Bors v. Preston). Suits by foreign ambassadors or pubhc ministers or consuls may be brought in the Supreme Court ; or as individuals they may sue in any other court having general jurisdiction of the case. 148. Admiralty Cases. The extension of the federal judicial power " to all cases of admiralty and maritime jurisdiction " can better be understood if it is stated that in England admiralty courts have jurisdiction of matters on the high seas which are beyond the jurisdiction of the ordinary courts. The purpose of giving such a jurisdic- tion to the federal courts was to enable them to exercise the powers of admiralty courts in England. But as a matter of fact the jurisdiction has been extended by construction, so that it is broader in scope than that of the English admiralty courts. Admiralty cases are those brought for breaches of contract relat- ing to maritime affairs, or for torts committed on the high seas or other waters within the admiralty jurisdiction, or for the enforcement of the peculiar liens recognized by courts of ad- miralty. The admiralty law is distinct in its rules and methods of procedure from both the law aind equity systems, and as a separate branch of the law, it is exclusively administered in the federal courts ; that is to say, an admiralty case cannot be tried in the state courts. It is true, the state courts may give the ordinary legal or equitable relief between the parties as to sub- ject-matter which might have been the basis for a proceeding in admiralty ; but an admiralty case as such cannot be tried save in the federal courts upon which admiralty jurisdiction is conferred by acts of Congress. In England the admiralty jurisdiction is limited to the high seas and navigable waters within the ebb and flow of the tide ; but this hmitation has been deemed inapplicable in this country, because of the existence of lakes and rivers capable of naviga- tion, and over which extensive foreign commerce is conducted, in which the tide does not ebb and flow. As now construed, the admiralty jurisdiction extends not only over the high seas, but over all of the navigable waters of the United States which 2 34 Federal Jurisdiction. [§ 149 constitute avenues for foreign or interstate commerce {The Steamboat Magnolia). Thus, the Great Lakes, the navigable rivers, such as the Mississippi and the Hudson, and even the canals, are within the admiralty jurisdiction, and the powers of the admiralty courts extend to the determination of cases relat- ing to maritime rights or transactions on all such waters. 149. Cases to which the United States is a Party. The provision giving to the federal courts power as to " con- troversies to which the United States shall be a party " simply authorizes Congress to provide for trial in the federal courts of suits brought by or against the United States. Prosecutions for offences committed against the laws of the United States are of this character, as are also suits by the United States government to enforce penalties and forfeitures for violation of the revenue or postal laws, or similar statutes. A suit against a federal officer and his sureties to recover a penalty under his bond for breach of duty would come within the same description. As plaintiff the United States may also under this provision sue in the federal courts to recover damages for breach of contract, or to enforce any other legal obligation. It is important to notice in this connection that a sovereign government cannot be sued in its own courts, and it was evi- dently not the intention of this clause of the constitution to change the rule in this respect as to the United States. There- fore, a suit against the United States cannot be maintained, even in the federal courts, unless under some express authority. The rule is this : that the ordinary statutory provisions conferring jurisdiction on the courts in certain classes of cases do not authorize suits against the United States, for it is to be presumed that a sovereign government will do justice without the com- pulsion of a court ; and that, moreover, it was not intended to give to any tribunal a coercive power with reference to the government itself Yet, as it is within the legislative authority to provide for the payment of just claims against the government. Congress may, if it sees fit, authorize such claims to be prosecuted in courts § 15°] U. S. and States as Parties. 235 specially designated for that purpose, and, accordingly, it has created a Court of Claims in which persons claiming that the United States is justly indebted to them may prosecute their demands, and have the justice of such demands legally investigated. It has been further especially provided by statute that the general courts of the United States may exercise much the same jurisdiction as to claims against the government as was conferred upon the court of claims. But these special provisions authorize only the determination by the court of claims, or other court having the same authority, of the legality of a claim ; they do not authorize the enforcement of any judgment which may be rendered against the United States, and it still remains for Congress in its discretion to appropriate the money necessary to pay such judgments. The immunity of the United States from suit in its courts does not extend to its officers or agents claiming to act under its authority (^United States v. Lee). If, as matter of fact, they act without authority, they may be sued in the federal or state courts, and held liable as individuals. And the validity of the authority which they claim to be exercising as officers or agents of the federal government may be investigated. The executive or legislative department cannot, by action in excess of its authority, confer upon any officer or agent the power to violate the law. 150. Controversies betTveen States. The states are independent of each other, but, since they are not capable of negotiating with each other, or having foreign relations with reference to each other, it is provided that con- troversies between them may be determined in the federal courts. Such controversies have usually been as to boundaries. As will be noticed in the next section, a state may not be sued, even in a federal court, by its own citizens or the citizens of another state or of a foreign government for the purpose of compelling it to pay its debts ; but if one state has a claim for money against another, the controversy relating to such claim is a controversy between states, bringing it within the 236 Federal Jurisdiction. [§ 'S' scope of the federal jurisdiction. Thus, where one state was the owner in its own right of bonds of another state, it was held that suit on such bonds could be maintained by the one state against the other in the federal courts {South Dakota v. North Carolina^. 151. Controversies bet-ween a State and Citizens of another State. Where a state has a claim of any kind against a citizen of another state, it cannot usually prosecute that claim in its own courts, because its courts cannot get jurisdiction of a non- resident except by his voluntary appearance ; and the state ought not to be compelled to submit its case to the courts of the state in which its debtor resides, because it is not consistent with the dignity of a state that it be compelled to submit itself to the jurisdiction of the courts of another independent state. Provision is therefore properly made for the trial of such cases in a federal court. But the general rule already announced with reference to the United States, that a sovereign government should not be subject to suit, is applicable also to the sovereign states. It could not have been intended that a state government should be subject to suit by private individuals. And this principle is expressly enunciated in Amendment XI in which it is pro- vided that " The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another, or by citizens or subjects of any foreign state." Even if the controversy is one arising under the constitution, laws, or treaties of the United States, and for that reason would otherwise be within the jurisdiction of the federal courts, such jurisdiction is excluded by Amendment XI if the suit is by private individuals or corporations against a state, and the same reasoning applies to a suit against a state by its own citizens, for, although this class of cases is not expressly covered by the Eleventh Amendment, it is excluded from the jurisdiction of the federal courts by the general rule that a sovereign state cannot § 152] Cases of Diverse Citizenship. 237 be sued except by its own consent {Hans v. Louisiana). Whether the citizens of a state may sue tlie state in its own courts will depend entirely on the laws of the state, and such authority has in some cases, although not generally, been granted. The conclusion to be drawn is that the jurisdiction of the federal courts does not extend to suits against a state, no matter what be the nature of the subject-matter, unless the suit be by another state of the Union or by a foreign state, or by the United States. 152. Controversies between Citizens of Different States. The jurisdiction of suits in which the party or parties on one side are citizens of a different state from that of the party or parties on the other, furnishes the larger part of the civil busi- ness in the ordinary federal courts. The object of the provi- sion with reference to such suits is to secure to the parties in such cases a trial before a court free from any possible prej- udice or bias on account of the citizenship of the parties on the one side or the other. To determine the citizenship of a party, in order to ascertain whether the case is one involving diverse citizenship as de- scribed in the constitutional language, the test now applied is that of the Fourteenth Amendment. Prior to the adoption of that amendment there may have been some uncertainty as to the test of citizenship in a state ; but now the simple rule is to ascertain whether the party in question is a citizen of the United States either by birth or naturalization, and, if so, whether he has a legal residence in the state of which he claims to be a citizen. It is to be noticed that by the language of the constitution the controversy must be between citizens of differ- ent states, that is, the party on one side must be a citizen of a different state from that of which the other is a citizen. It fol- lows that controversies between a citizen of one state and a citizen of the United States having his legal residence in the District of Columbia or in a territory, is not within that class of cases, for it is not a controversy between citizens of different states, the District of Columbia not being considered a state in 238 Federal Jurisdiction. [§153 this sense, and territories of course being excluded by the terms used. A controversy between a citizen of a state and an alien would not fall within the terms of this provision, but it is covered by the last clause of the section relating to controver- sies between a citizen of a state and a citizen or subject of a foreign state. Under the clause as to diverse citizenship a corporation is deemed a citizen of the state in which it is organized and au- thorized to do business. For some purposes a corporation is said not to be a citizen, as that terra is used in other sections of the constitution, and perhaps it is only by a fiction that a controversy between a corporation of one state and a citizen or corporation of another can be said to be a controversy between citizens of different states {Ohio, etc. R. Co. v. Wheeler). But it is well settled that, for the purpose of determining the juris- diction of the federal courts, a corporation is for practical pur- poses a citizen of the state of its organization and under the laws of which it is authorized to transact business. While a cor- poration organized in one state, and authorized there to do business, may also transact business in another state by acquies- cence or express permission of the latter, it is not, however, a corporation of that state with reference to the jurisdiction of the federal courts under this clause {St. Louis, etc. R. Co. v. yaines). 153. Controversies under Land Grants of Different States. The provision that the judicial power of the federal govern- ment extends to controversies between citizens of the same state claiming lands under grants of different states has not given rise to any difficulties of interpretation, although it was no doubt intended to cover specific classes of cases which it was thought would be likely to arise, and which, by reason of the fact that the claims would be made under the laws of differ- ent states, ought to be determined in the federal courts. § 154] Citizens and Aliens. 239 154. Controversies betvreen a State and Foreign States, or between Citizens and Aliens. The last of these enumerations of grounds for jurisdiction of the federal courts includes several possible classes of cases. It is difficult to conceive of a controversy between a state and a foreign government. But if such controversy could arise, de- terminable by the courts, it would be within the possible juris- diction of the federal courts. If a foreign government sought to sue the citizens of a state, such suit would be within the scope of federal jurisdiction. Controversies between a citizen of a state and a citizen or subject of a foreign government, that is, suits between citizens and aliens, are of frequent occurrence, and the propriety of placing them within the general scope of federal jurisdiction is self-evident. CHAPTER XXVII. THE EXERCISE OF FEDERAL JUDICIAL POWER. 155. References. J. Story, Constitution, §§ 1731-1747, 1760-1773 ; J. I. C. Hare, Consti- tutional Law, lect. 1 ; T. M, Cooley, Constitutional Law (3d ed.), 139- 152; H. C. Black, Constitutional Law, § 97; Martin v. Hunter's Lessee (i8i6, I Wheaton, 304; 3 Curtis' Decisions, 562 ; McClain's Cases, 746; Thayer's Cases, 123); Cohens v. Virginia (1821, 6 Wheaton, 264; 5 Curtis' Decisions, 82 ; Thayer's Cases, 285 ; Marshall's Decisions, Dil- lon's ed., 357) ; Gaines v. Fuentes (1875, 9^ U. S. 10; McClain's Cases, 769). 156. Jurisdiction by Original Suit. The simplest and most natural method of providing for the exercise of federal jurisdiction as to classes of cases which are by the constitution declared to be within the scope of the fed- eral judicial power is by providing courts in which such suits may be originally brought ; and there are courts provided, as described in the next chapter, in which controversies arising under the constitution, laws, or treaties of the United States, and cases of admiralty and maritime jurisdiction, and suits by the United States, and suits by a state against another state, or against the citizens of another state, and suits by a citizen of one state against a citizen of another state, and by a citizen against an alien, or an alien against a citizen, may be originally instituted. The facts which make the case a proper one for the jurisdiction of the court in which it is brought must be stated, and the particular court in which the suit is instituted will not have jurisdiction, unless, as already explained, the case is one within the enumeration of federal judicial power, and also one which may be tried in the court as constituted. 240 § J 57] Removal. 241 157. Jurisdiction by Removal. Inasmuch as the jurisdiction of the federal courts in the classes of cases which may be within their jurisdiction is not ex- clusive, as already explained, unless expressly so declared, suits may be properly instituted in a state court (see above, § 143) which belong to some of the classes of cases of which a fed- eral court may have jurisdiction. Under the rule that the court which first takes jurisdiction of the case should be allowed to proceed without interference from any other court, save a court of appeal, it would result that a case first brought in a state court, for instance, by a citizen of that state against a citi- zen of another state, or an alien, would be finally tried and de- termined in the state court, notwithstanding it was a case of which the federal courts might have jurisdiction, unless some provision were made for the removal of such a case from the state court to a federal court for trial. And the same consider- ations apply to a controversy arising under the constitution, laws, or treaties of the United States ; for, as has already been said, the state courts are not excluded from the determination of such controversies. Therefore, it is provided by the statutes of the United States, that the party against whom a suit is brought in a state court, which is of such character by reason of the subject-matter or the nature of the parties that it might have been brought in a federal court, may have it removed to the federal court for trial {Gaines v. Fuentes). This removal is secured by showing to the state court the facts which make the case a proper one for removal, and asking that it be transferred to the proper federal court. But even if the state court refuses to grant the transfer in a proper case, such transfer may be secured by ap- plication to the federal court to which the party applying has a right to have it removed. Such removal must, in general, be applied for before further proceedings are taken in the state court, and if the case is allowed to proceed before a removal is asked, it is too late to secure trial thereof in the federal court. But where the party asking to have the case removed can show 16 242 Original and Appeal Jurisdiction. [§ 158 that there is some prejudice or local influence making it im- proper that it be tried in the state court, he may secure a re- moval at a later stage in the proceedings, and thus have a trial in a tribunal free from such prejudice or local influence. It is, of course, impossible to state in detail the conditions and methods for removal of cases from the state to the federal courts, but the general principles in accordance with which such removals are allowed have been sufiSciently indicated. 158. Jurisdiction by Appeal from State to Federal Courts. The jurisdiction of the federal courts in the classes of cases placed within their jurisdiction by the federal constitution may be exercised, however, not only by trial in a federal court but also by means of an appeal from a state court to a federal court, and such an appeal is authorized by statute where the construc- tion of the constitution, laws, or treaties of the United States is involved, or some right, privilege, or immunity, is claimed under such constitution, laws, or treaties {Cohens v. Virginia and Martin v. Hunter's Lessee). It is evident that there would be no proper occasion for such an appeal unless the decision of the state court should be against the party who makes some claim by reason of the constitution, laws, or treaties of the United States or is asserting some right, privilege, or immunity by virtue thereof. The theory is that it is only when a state court has put a construction on some provision of the constitution, laws, or treaties which is contrary to that which the unsuccessful party claims should have been put upon it, and such construc- tion is injurious to him ; or when the state court has denied some right, privilege, or immunity claimed under federal author- ity, that an appeal to the federal courts is necessary. Such an appeal can only be taken after the unsuccessful party has carried the case through the state courts to the court of last resort, and is still unsuccessful. Such an appeal from a state court can only be taken to the Supreme Court of the United States. None of the lower federal courts have authority to review on appeal the decisions of the § is8] Appeal. 243 state courts, and, as will appear from what has been said, the Supreme Court exercises such appellate jurisdiction only with reference to federal questions. In cases which are declared to be within the jurisdiction of the federal courts in order to pro- vide a fair court for their trial, and which might have been originally brought in or removed to a federal court, no right of appeal from the state to a federal court is provided for. If the parties have seen fit to submit their controversy to a state court, neither of them can afterwards complain that such court did not afford him a fair trial. CHAPTER XXVIII. APPORTIONMENT OF FEDERAL JURISDICTION. 159. References. J. Story, Constitution, §§ 1636, 1701-1731 ; J. I. C. Hare, Constitutional Law, lects. liii, liv ; James Kent, Commentaries, lects. xv, xvii ; T. M. Cooley, Constitutional Law, ch. vi ; H. C. Black, Constitutional Law, §§85-87, 91, 92; Ross V. Mclntyre (1891, 140 U. S. 453). 160. The Federal Judicial System. In pursuance of the power given to Congress under Article III, § I, of the constitution, to ordain and estabhsh courts inferior to the Supreme Court, in which, together with the Supreme Court, which is expressly provided for in the same article, the judicial power of the United States shall be vested, Congress has established a system of courts of three grades, known as the district courts, the circuit courts, and the circuit courts of appeal, the first two classes being courts of original jurisdiction, and the last class courts of appellate jurisdiction ; and these courts, together with the Supreme Court, exercise all the jurisdiction authorized by the constitution to be exercised by the federal judicial power, so far as that jurisdiction is con- ferred on any federal tribunal. The scope of the jurisdiction of the Supreme Court is determined by the constitution, as will be explained in a subsequent section ; the scope of jurisdiction of each of the other classes of courts is determined by statutes, the first of which was enacted in 1789. It will not be possible to go into the details as to the particular classes of cases which may be determined in each of these classes of courts ; but the general nature of the jurisdiction conferred upon each may be so described that the scope of their jurisdiction shall be intelligible. 244 § 162] Federal District Courts. 245 161. Federal District Courts. The class of federal courts of lowest grade is composed of the district courts. The United States is divided into districts, no one of them embracing more than one state, although many of the states are divided into two or more districts ; and in each district is appointed a district judge, who must be a resident of the district, and who holds a district court at one or more places in the district. The circuit judge may hold the district court in place of the district judge, and it is provided that the judge of another district may by delegation serve temporarily in a district other than that for which he is appointed. But with few exceptions the district court is held at the place or places designated by law within the district by the judge appointed for that district. The most important jurisdiction conferred upon the district courts is that of trying prosecutions for crimes under the laws of the United States which are not punishable by capital punish- ment. The circuit court only can try prosecutions for capital crimes, but it has concurrent jurisdiction with the district court as to crimes not capital. Nevertheless, criminal prosecutions in cases not capital are usually conducted in the district courts. Suits by the United States are authorized to be brought in the district courts, and such courts have jurisdiction for the trial of civil cases in admiralty and prize cases. Jurisdiction is given to the district courts as to some other matters, but the classes of cases here enumerated are those of principal importance. i62. Federal Circuit Courts. The judicial districts of the United States are grouped into nine circuits, in each of which there is a circuit court, which is held at one or more places in each district of the circuit, by any one of the following federal judges, to wit, the justice of the Supreme Court assigned to the circuit, one of the two or more circuit judges of the circuit, and the district judge of the district in which the circuit court is held. Any two of these judges may together hold the circuit court, but any one of them 246 Federal Courts. [§ 162 is competent and is qualified to do so. The number of circuit courts corresponds to the number of justices of the Supreme Court, and each of such justices is permanently assigned to a particular circuit. Formerly it was the practice for these justices to preside over the circuit courts in their respective circuits, but this practice has fallen into disuse, although the authority remains. The circuit judges, two or more of whom are appointed for each circuit, are also judges of the circuit court of appeals, described in the succeeding section, and their time is principally devoted to the discharge of their duties in connection with those courts, so that, as a rule, the ordinary terms of the circuit court in any particular district are presided over by the district judge for the district in which the circuit court is held. As stated in the preceding section in describing the criminal jurisdiction of the district courts, the circuit courts have juris- diction to try prosecutions for any crimes against the laws of the United States, and they have exclusive jurisdiction in prosecutions for crimes punishable capitally. But, except as to capital crimes, they do not usually try criminal cases. Their civil jurisdiction includes cases arising under the constitution, laws, or treaties of the United States, provided the matter in dispute exceeds the sum or value of ^2,000, and controversies between citizens of different states, or between citizens of a state and foreign states, citizens, or subjects, with a like limita- tion as to the amount in controversy. Cases of either of these classes which might originally have been brought in a circuit court, if brought in a state court may be removed by the de- fendant into a circuit court for trial (see above, § 157). Suits by the United States may be brought in the circuit court in- stead of in the district court, if the amount in controversy exceeds ^2,000. Some classes of cases arising under the laws of the United States, such as suits under the patent or copy- right laws, or under the postal laws, and proceedings under the interstate commerce law, the act to protect trade and com- merce against unlawful combinations, trusts, and conspiracies, and under the immigration acts, may be brought in the circuit court without regard to the amount in controversy. § 163] Circuit and Circuit Appeal. 247 It is apparent, therefore, that the jurisdiction of tlie circuit court is usually exercised in civil cases, arising under the consti- tution, laws, or treaties of the United States, and in cases involv- ing controversies between citizens of different states, or between citizens and aliens ; and that this jurisdiction may be exercised, either by trying cases originally brouglit in this court, or those removed from state courts ; but that, save in cases arising under the patent and copyright laws, the revenue laws, the postal laws, and a few other classes of cases, the amount in contro- versy must exceed ^2,000, to give the circuit court jurisdiction. 163. Federal Circuit Courts of Appeals. The district courts and circuit courts, as above described, exercise only original and not appellate jurisdiction. The courts of tliese two classes, together with the Supreme Court, constituted the judicial department of the federal government until 189T, when a new court was created, called the circuit court of appeals, to be held at one or more places in each circuit, presided over by the three judges authorized to hold the circuit courts throughout the circuit, that is, the justice of the Supreme Court assigned to the circuit, and the two circuit judges appointed for the circuit. But by acts of Congress passed from time to time the number of circuit judges in many of the circuits has been increased to three, and in practice the justices of the Supreme Court do not, except in rare instances, serve in this capacity. Where there are only two circuit judges, or in case one or more of the circuit judges is incapacitated to sit, the requisite number of judges is provided by assigning district judges from districts within the circuit to serve tem- porarily. In no instance does the judge who has tried a case sit in the circuit court of appeals on the hearing of an appeal in such case. Before the creation of the circuit courts of appeals, the ap- pellate jurisdiction over the district and circuit courts was exercised exclusively by the Supreme Court, save that as to a few classes of cases appeals might be taken from the district to the circuit Courts. When the circuit courts of appeals were 248 Federal Courts. [§ 164 established, the appellate jurisdiction of the circuit courts was transferred to them, and they were given also a considerable portion of the appellate jurisdiction formerly exercised by the Supreme Court, the object of establishing the circuit courts of appeals being to relieve the Supreme Court of some of the business with which it was found to be overburdened. The circuit courts of appeals have in general jurisdiction to hear appeals from the district and circuit courts in suits which are between citizens of different states, or citizens of a state and aliens ; also in admiralty cases and cases under the patent, copy- right, revenue, or postal laws, and in criminal cases where the crime is not capital or otherwise infamous, in which case the appeal is to the Supreme Court. With few exceptions the deci- sion of a circuit court of appeals, in a case properly appealed to it, is conclusive, and no further appeal to the Supreme Court of the United States can be taken. The circuit courts of ap- peals do not entertain appeals from state or territorial courts, but only from the district and circuit courts. But an exception is made in case of the United States court in the Indian Terri- tory, which is put on the same basis as the district and circuit courts. 164. The Federal Supreme Court. Under the statutory provisions now in force, the Supreme Court consists of a chief justice and eight associate justices, and sits only at the national capital. By the constitution (Art. Ill, § 2, If 2) the Supreme Court has both original and appellate jurisdiction; original "in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party,'' and appellate in other cases as provided by law. The original jurisdiction of this court cannot be extended by statute to any cases except those mentioned in the constitution, but by statute it is made exclusive in some of those cases, to wit, cases against ambassadors or public ministers or their domestics, and also in cases to which a state is a party, except between a state and its citizens, or between a state and citizens of other states or aliens. It has already been explained (above, § 164J The Supreme Court. 249 § 147) that, according to the rules of international law, am- bassadors and public ministers are exempt from suit in the courts of the country to which they are accredited and by which they are received, so that the only practical effect of giving to the Supreme Court exclusive jurisdiction in such cases is to prevent any other court from entertaining jurisdiction. It is to be noticed, however, that this does not apply to consuls. But, on the other hand, the original jurisdiction of the Supreme Court in cases affecting consuls is not made exclusive, so that it is not necessary that suits against them be brought in the Supreme Court. As to cases in which a state is a party, the effect of the statutory provision is to give the Supreme Court exclusive original jurisdiction where a suit is brought against a state, that is, where a suit is between states, or by the United States against a state, while, on the other hand, if the suit is by a state against citizens of another state or ahens, the suit need not necessarily be in the Supreme Court, but may be in some other federal court, if any such court has jurisdiction. The appellate jurisdiction of the Supreme Court is extensive and complicated, but may briefly be described as follows: (1) It has jurisdiction of appeals from the district or circuit courts in prize cases, in cases of conviction of a capital or otherwise infamous crime, in cases involving the construction or apphca- tion of the constitution of the United States, and in cases in which the constitutionality of any law of the United States, or the validity or construction of any treaty made under its authority is drawn in question ; also in cases in which the con- stitution or a law of a state is claimed to be in contravention of the constitution of the United States. (2) It has jurisdiction of appeals from a circuit court of appeals in any case certified by that court to the Supreme Court, or removed from that court to the Supreme Court by direction of the latter, and in some other cases in which appeals to the circuit courts of appeals are not final. (3) It has jurisdiction of appeals from state courts of last resort in cases involving a federal question, where the decision of the state court is against the validity of a statute or 250 Federal Courts. [§ 165 treaty of or authority exercised under the United States, or in favor of the validity of a statute of or authority exercised under any state, where the vahdity of such statute or authority is called in question as being repugnant to the constitution, laws, or treaties of the United States, or where the decision is against any title, right, privilege, or immunity claimed under the consti- tution, statutes, treaties, or authority of the United States. (See above, § 158.) (4) It has jurisdiction of appeals from the Su- preme Court of the District of Columbia, or the supreme courts of the territories, with limitations as to amount in controversy which need not be here particularly specified. (5) It has juris- diction of appeals from the court of claims, or from district or circuit courts in cases against the United States, with some limitation as to the amount in controversy. There are some other classes of .cases in which the Supreme Court exercises an appellate jurisdiction which need not be here particularly enumerated. 165. Other Courts Created by Congress. The courts which have been described in this chapter, the Supreme Court being one of them, constitute all the courts which exercise the judicial power of the federal government, as specifically prescribed in the constitution. But in the exercise of the authority vested in Congress, either expressly or by im- plication, in other portions of the constitution, Congress has created other judicial tribunals. Under the power to legislate for the District of Columbia, it has provided a system of courts for that district. Under the authority to make rules and regu- lations for the government of territory of the United States, outside of the limits of any state, it has provided for terri- torial courts. Under authority derived by certain treaties with Turkey, China, and some other non-Christian nations, it has given jurisdiction to consuls of the United States in those countries to try citizens of the United States for offences com- mitted there, and also to determine civil suits to which citizens of the United States are parties. (See Hoss v. Mclntyre^ And under the authority to provide for the payment of claims § i66] Additional. 251 against the United States, it has created a court of claims, in which claimants may have an adjudication as to the justice and legality of their demands. (See above, § 149.) 166. United States Commissioners and Magistrates. The circuit courts may appoint commissioners, often termed United States Commissioners, who are authorized to exercise various powers conferred upon them, such as the taking of affidavits, the issuance of warrants of arrest for crime under the laws of the United States, and the taking of bail in such cases. These commissioners are also given certain powers in admiralty cases, and in regard to other matters, which need not be particularly described. The justices and judges of the federal courts, and the judges, justices of the peace, and other magistrates of a state, as well as the United States Commissioners just described, are authorized to cause the arrest of offenders against the laws of the United States and to admit them to bail. Various courts and judges of the United States and of the states are authorized to issue certificates of naturalization to aliens applying therefor and complying with the naturalization laws. (See above, § 100.) CHAPTER XXIX. THE LAW ADMINISTERED IN THE FEDERAL COURTS. 167. References. J. Story, Constitution, §§ 1748-1759; J. I. C. Hare, Constitutional Law, lect. li ; James Kent, Commentaries, lect. xvi ; James Bryce, American Commonwealth, ch. xxiii ; T. M. Cooley, Constitutional Law (3d ed.),.i52, 159; H. C. Black, Constitutional Law, §§ 93-96; The Federalist, No. 82 ; Swift V. Tyson (1842, 16 Peters, i; 14 Curtis' Decisions, i56; McClain's Cases, 796); Railroad Company v. National Bank (1880, 102 U. S. 14; McClain's Cases, 800); Burgess y. Seligman (i?>?>t„ 107 U. S. 20, Mc- Clain's Cases, 805; Thayer's Cases, 1545); Smith v. Alabatna (1888, 124 U. S. 465 ; McClain's Cases, 812; Thayer's Cases, 2068); Western Union Telegraph Co. v. Call Publishing Co. (1901, 181 U. S. 92; 21 Sup. Court Reporter, 561); Riggs -^.Johnson County (1867, 6 Wallace, 166; McClain's Cases, 784). 168. Distiuctiou between Law and Equity. In actions at law the federal courts follow in general the procedure provided for their own tribunals by the states in which they sit ; but in equity cases the federal courts follow their own rules of procedure, which are founded on the prac- tice in the chancery courts of Great Britain as they existed at the time of the adoption of the federal constitution. The result is that the equity practice of the federal courts is uniform throughout the Union, and is governed by the rules and deci- sions of the Supreme Court of the United States ; while in law cases the practice is not uniform, but depends on the laws of the various states in which the courts are held. This distinc- tion depends on statutory provisions, and is made for conven- ience in the practical administration of justice. (See above, § 146.) 169. The Common Law and the Law of the States. In cases arising under the constitution, laws, or treaties of the United States, and depending for their decision on the 252 § 169] Common Law. 253 construction thereof, the federal courts follow their own judg- ment, guided, of course, by the decisions of the Supreme Court of the United States. But many cases, particularly cases which are in the federal courts by reason of diversity of citizenship of the parties, do not involve the constitution, laws, or treaties of the United States, or any rights arising under them, but only the application of general principles of law, or the construction of the constitutions or statutes of the different states ; and in these cases the federal courts apply the general principles of law, or the constitutional or statutory provisions which would have been applied had such cases been tried in the state courts. The federal courts follow the decisions of the state courts in the construction of their own constitutions and states, and also in cases involving some established rule of property. But in other cases, which are to be decided according to the general principles of law, the federal courts determine for themselves what such general principles are, without feeling themselves bound to follow the decisions of any particular state {Railroad Company v. National Bank and Burgess v. Seligman). In all the states except Louisiana the common-law system, that is, the English system of law, is recognized as in force, so far as consistent with the institutions and conditions under which we live ; while in that state the prevailing system of law is that known as the civil law, as embodied in the Code Na- poleon, which was in force in France at the time the Louisiana Territory was acquired by the United States. Therefore, in cases tried in the federal courts sitting in any of the states except Louisiana, it is presumed that the rights of parties are determined by ine common law, save as it may have been modified or superseded by state statutes ; that is, the common law is the general law for each of these states (Smith v. Ala- bama). It can hardly be said, however, that there is a com- mon law of the United States, for so far as cases are to be determined by general law, in the absence of statutory provi- sions, the federal courts are presumed to follow the general law as it exists in the state where the federal court sits, or in the state according to the law^ of which the case is to be de- 254 Federal Law. [§ 170 cided, although, as already indicated, the federal courts are not bound by the decisions of the state courts interpreting the gen- eral law, except so far as the decisions of the state courts have become rules of property. A subject-matter which is placed within the control of Congress, such as interstate commerce, is assumed to be subject to the general rules of the common law so far as Congress has not legislated with reference to it. (See Western Union Telegraph Co. v. Call Publishing Co.) There are no common-law crimes against the United States, that is to say, no acts are punishable in the federal courts as crimes save as they have been made criminal by federal stat- utes. However, when a punishment is provided by federal statute for an act generally described by the terms used in the common-law definitions of crimes, the courts will consider the common-law definition as indicating the scope of the language used in the statute. 170. Conflicting Jurisdiction of Federal and State Courts. It seldom occurs that there can be any conflict of jurisdic- tion between a federal and a state court. Any apparent con- flict is usually determined by the application of the principle of comity (see above, § 143), in accordance with which one court will not interfere with or take jurisdiction over a matter as to which another court has already acquired jurisdiction. But should any conflict as to jurisdiction arise, the final author- ity to decide must necessarily be in the federal court, and no state court can interfere with the proceedings in a federal court, nor with officers of a federal court acting in pursuance of its orders or judgments {Riggs v. Johnson County). Redress for wrongs committed by an officer acting under the federal author- ity should be sought in the federal courts. But on the other hand, a federal officer, acting without authority, may be called to account in a state court for any wrong done or injury com- mitted, subject to the power of the federal courts to review or inquire into the case for the purpose of determining whether the officer was justified by federal authority in what he has done or has attempted to do. § i/i] Conflicting Jurisdiction. 255 171. Authority of the Judiciary to Pass upon the Constitu- tionality of Statutes. In discussing the relations of the departments of government to each other, it has already been indicated that, in a case properly coming before a coiirt, the court has the power to de- termine the constitutionality of a statute. (See above, § 7.) This power is exercised by the federal courts with reference to statutes passed by Congress, as well as by state courts in deter- mining the constitutionality of state statutes, and no further dis- cussion of the subject is necessary. It is sufficient to say that neither the legislative nor the executive department of the fed- eral government is independent of the constitution, and that, in the decision of a case properly before it, a court may prop- erly determine whether the action of Congress or of an officer of the executive department is in violation of the constitution, and therefore invalid. Part VI. The States and Territories. CHAPTER XXX. RELATIONS OF FEDERAL AND STATE GOVERNMENTS. 172. References. J. Story, Constitution, §§ 1813-1825 ; J. R. Tucker, Constitution, §§ 310- 319; T. M. Cooley, Constitutional Law, ch. xi; H. C. Black, Constitutional Law, ch. X ; The Federalist, Nos. 43, 44; Luther v. Borden (1848, 7 Howard, i ; 17 Curtis' Decisions, I ; McClain's Cases, 595 ; Thayer's Cases, 191); Texas v. White (1868, 7 Wallace, 700; Thayer's Cases, 302 ; McClain's Cases, 838). 173. Relations of States and Federal Grovernment under the Constitution. In discussing the historical development of our constitutional system, it has already been pointed out that the state govern- ments came into existence in practically their present form before the federal constitution was adopted (see above, § 9) and that by reason of the establishment of the federal government, they were deprived of such powers and only such powers as are expressly denied to them in the federal constitution or are inconsistent with the powers given to the federal government. (See above, § 16.) The states remain sovereign and indepen- dent with reference to each other ; but the authority which they can exercise over their citizens is inferior to the power which the federal government acting within the scope of the federal 256 § 173] States and Federal Government. 257 constitution can exercise over the same persons as citizens of the United States. The states do not derive their powers from the federal government under the constitution but are merely limited in their powers by that constitution, and the authority of the federal government operates primarily and directly upon its citizens and not upon the states. Still there are necessarily some relations between state gov- ernments and the different departments of the federal govern- ment, and there are some relations of the states to each other which are provided for or recognized by the federal constitution. For instance, the legislatures of the states provide how presiden- tial electors are chosen (Const. Art. II, § i, If 2) ; and the times, places, and manner of holding elections for senators and repre- sentatives in Congress are prescribed in each state by the legis- lature thereof subject to revision by Congress (Art. I, § 4, l^ i). Further, it is provided that the states may organize their militia and appoint the officers thereof, subject to- the superior author- ity of the United States when the militia is called into the serv- ice of the United States (Art. I, § 8, f 16). Again, appeals from the courts of last resort in a state to the Supreme Court of the United States are provided for in cases where federal questions are involved and the decision is against the right, privilege, or immunity claimed under the constitution, laws, or treaties of the United States or the authority thereof. (See above, § 158.) And there is, further, an express guarantee of the preservation and protection of the state governments by the United States, which will be considered in the next section. It is evident from these various provisions, as well as from the historical relations between the state governments and the fed- eral government, that while the federal government was organ- ized as a sovereign and permanent government, the perpetual existence of the states was at the same time fully recognized and provided for. " The constitution in all its provisions looks to an indestructible Union, composed of indestructible states " {Texas v. White). 17 258 Union and States. [§ 174 174. Guarantee of Republican Government in the States. The continuing obligation of the United States with reference to the existence of the states is twofold : The constitution pro- vides (Art. IV, § 4), for (i) a repubhcan form of government in each state, and (2) the protection of such government against being overthrown by invasion of a foreign power or by domestic violence. It is evidently assumed in the guarantee that the forms of government existing in the different states at the time of the adoption of the federal constitution were republican. The char- acteristic feature of such a form of government is that those exer- cising authority do so in a representative capacity ; it cannot be a monarchy on the one hand nor a pure democracy on the other. No doubt a repubhcan form of government, as described in the federal constitution, involves the exercise of the powers of government by different departments, and a selection of the members of, at least, the lower branch of the legislature by pop- ular vote, but by popular vote it is not necessarily meant that all the adults or even all the adult males shall be entitled to exercise the electoral franchise, but only that officers be in some form selected by a body of electors substantially repre- senting the people. As will be pointed out in the chapter relating to citizenship and political privileges (see below, § 200) the right to vote is to be regarded only as a privilege conferred in accordance with the public interest. While the constitution provides that the United States " shall " guarantee a republican form of government to the states, it is to be understood that the exercise of this power is discretionary. There has been, as yet, but little discussion as to the nature and extent of this power, for there has been little occasion for its exercise. It may be suggested, however, that republi- can government might cease to exist in a state (i) through invasion by a foreign power and an attempt to set up some other form of government by its authority ; (2) or by a revo- lutionary attempt of the people themselves to overthrow the existing republican form of government and to substitute some other form in its place ; (3) or by an attempt to destroy repub- § 175] Guaranties to States. 259 lican government by amendment of state constitutions. In any of these instances the new government would be illegal and un- authorized, and a republican form of government having ceased to exist there would be no state government and Congress would have occasion to provide for the establishment of such a gov- ernment (see below, § 181). 175. Guarantee against Invasion or Domestic Violence. The provision of the federal constitution last above referred to, so far as it relates to the protection of the state governments, ' involves protection, not only against invasion, but also against domestic violence. As to invasion, no action of the state in- voking federal protection is necessary ; an invasion of a state is also an invasion of the United States, and would be a proper ground for the exercise of the federal executive power, involv- ing the use of the military and naval forces (see above, § 130). In case of domestic violence against a state government the federal government is authorized to act only on application of the state legislature, if in session, or the executive when the legislature cannot be convened. It is provided by statute that this application be made to the president and that he may call out the militia of other states if a military force is necessary, and it is evidently implied that he may make use of any of the mili- tary and naval forces of the United States in the exercise of his discretion (see above, § 131). The express denial to the states of the power to grant titles of nobility (Const. Art. I, § 10, 1 i) should properly be regarded as a provision for the preservation of a republican form of government, and the similar restriction on the power of the United States (Const. Art. I, § 9, H 8) was undoubtedly intended to have the same effect in the preservation of a republican form for the federal government. These provisions are self-executing, and any attempted grant of such titles by the federal or a state government would be void because un- constitutional. 26o Union and States. [§ 176 176. Reconstruction of States. There has been no occasion for the active exercise by Con- gress of the power to guarantee a republican form of govern- ment in any state save in those cases where the existing state governments were overthrown as the result of the rebellion of the Southern states in 186 1 and the attempt by the people of those states to form a new federal government under the name of the Confederate States of America. This attempt was so far successful that in eleven Southern states the regularly constituted state governments ceased to exist and revolutionary governments were substituted. These new state governments were de facto governments and were republican in form ; but they were not the state governments recognized by the federal constitution, for they were not organized to exercise powers which states might have under that constitution, but were, on the other hand, organized to exercise power in hostility to the government therein provided for. The people of the Southern states in rebellion continued to be citizens of the United States and subject to the constitution and laws of the United States and the authority provided under such constitution and laws ; but ceasing for the time being to exercise the political functions provided for by the federal con- stitution they were without " state " governments in the sense of the federal constitution. Therefore, as far as the federal govern- ment was concerned, those states at the end of the war were still without state governments. It thereupon became the duty of the federal government, as soon as peace and tranquillity had been so far restored in those states as to make civil government possible, to provide for the establishment therein of regular state governments ; and this was done under the provisions of the so- called reconstruction acts (1867). It is unnecessary now to discuss at length the provisions of these acts or to consider the different questions which arose under them ; it is enough to say that state governments of a republican form were re-established. During the interval be- tween the overthrow of the existing but irregular state govern- §176] Reconstruction of States. 261 ments and the recognition of new state governments under the reconstruction acts, the states whose people were in rebellion did not cease to be states in the Union, but they were for the time being states without any regular and lawful governments, that is, without any governments which the federal government could recognize. CHAPTER XXXI. ADMISSION OF STATES. 177. References. J. Story, Constittdion,^% 1314-1321; J. A. Jameson, Constitutional Con- ventions, ch. vii ; J. R. Tucker, Constitution, §§ 295-301 ; T. M. Cooley, Constitutional Law, ch. ix; H. C. Black, Constitutional Law (aded.), 233- 235; Boydw. Thayer (i?ig2, 143 U. S. 135; McClain's Cases, 423) ; Texas V. White (1868, 7 Wallace, 700; McClain's Cases, 838; Thayer's Cases, 302); Sands v. Manistee River Improvement Co. (1887, 123 U. S. 288; McClain's Cases, 842). 178. Ratification by Original States. As the federal constitution was to go into operation when ratified by conventions in nine of the original thirteen states (Const. Art. VII), it evidently was contemplated that as the federal government was created by such ratification, any of the original states which had not thus ratified at that time should later become members of the union by similar ratification. It was not intended that such states should be excluded from the union nor that the union should be forced upon them, but only that they should not be members of it until such ratification had taken place. Congress was not called upon to take any steps with reference to admission of such states and although ratifica- tion was postponed in two states, they soon became members by their voluntary action. 179. Admission of New States by Congress. But at the time of the formation of the federal government, there were large areas of territory within its jurisdiction derived by cessions from the various states and from Great Britain under the treaty of peace ending the war of the Revolution, which were not included within the limits of any state, and provision was made in the constitution for the admission of 262 § i8i] Admission of States. 263 new states out of such territory. This provision (Const. Art IV, § 3, If i) does not specify the conditions under which new states shall be admitted ; consequently Congress may im- pose such conditions as it sees fit. It may require that certain fundamental provisions be incorporated into the constitution of the new state, that the state accept such boundaries as Congress may prescribe, and in general that any plan or policy which has the support of Congress be acceded to. But when a state has once been admitted, it is on a par, so far as power to regulate its internal affairs is concerned, with the other states, and it seems that it may by amendment change its con- stitution, regardless of any condition imposed by Congress. After admission a state is limited as to its powers only by the provisions of the constitution itself {Sands v. Manistee River Improvement Co.). 180. Change of State Boundaries. After the admission of a state with specified boundaries, such boundaries cannot be changed by action of the state. alone, for by the federal constitution (Art. IV, § 3, H i) it is provided that " no new state shall be formed or erected within the juris- diction of any other state, nor any state be formed by the junction of two or more states or parts of states without the consent of tlie legislatures of the states concerned, as well as of tJie Congress." Therefore, territory cannot be taken away from a state nor added to a state without the consent of both states involved and of Congress as well. In the construction of this language it may well be assumed that to attempt to change the boundaries of a state would in practical effect be to attempt the creation of a new state. 181. Headmission of Seceded States. From what has been said in the last preceding chapter with reference to the condition of the states which seceded during the war of the Rebellion, it is evident that Congress, in pro- viding for the reorganization of governments in those states after the restoration of peace, did not act under the authority 264 Admission of States. [§ 183 to admit new states to the union, but rather under the authority to guarantee a republican form of government. The states were not readmitted, but provision was made for the re-estab- lishment of governments therein. 182. Steps for Admission of States. Different methods for the admission of new states have been pursued by Congress in diiiferent cases. Sometimes the pro- posed state has organized itself for the adoption of a constitu- tion and has asked admission under such constitution ; at other times conditions have been imposed, on compliance with which by the states admission has been granted ; and again. Congress has sometimes first provided for the formation of a constitution under the authority of an enabling act, and then for the ad- mission of the proposed state when the constitution should be adopted by the people as prescribed by the act. It has not always been required that the constitution under which the state is admitted shall have been submitted for approval by the people of the proposed state, but that has been required in most cases and in all the recent cases of admission. 183. Eifect of Admission of States. Congress has authority to organize territories and provide for local governments therein, analogous in some respects to the governments of the states. Frequently, but not uniformly, territories thus created have been subsequently admitted as states with the same boundaries, but even when so admitted the state government has gone into operation under the constitution adopted at the time of its admission as a new government. It is proper, however, to provide and is often provided by the statute for admission that the laws of the territory shall remain in force until they are superceded by the adoption of state laws under the authority of the constitution of the new state. CHAPTER XXXII. TERRITORIAL GOVERNMENTS. 184. References. J. Story, Constitution, §§ 1322-1330; J. N. Pomeroy, Constitutional Law, §§ 483-499; T. M. Cooley, Constitutional Lazv, ch. viii; H. C. Black, Constitutional Law (2d ed.), pp. 228-232 ; American Insurance Co. v. Canter (1828, I Peters, 511; 7 Curtis' Decisions, 685; McClain's Cases, 827; Tliayer's Cases, 350 and note, Marshall's Decisions, Dillon's ed., 586) ; Clinton V. Englebrecht (1871, 13 Wallace, 434) ; Thompson v. Utah (1898, 170 U. S. 343 ; McClain's Cases, 831) ; The Insular Cases : viz. De Lima V. Bidwell (1901, 182 U. S. i); Downes \. Bidwell (1901, 182 U. S. 244) ; Dooley v. United States (1901, 182 U. S. 222) ; Fourteen Diamond Jiings V. United States (1901, 183 U. S. 176) ; Hawaii v. Matikichi (1903, 190 U. S. 197) ; Gonzales V. Williams (1904, 24 Sup. Court Reporter, 177) ; Dorr V. United States (1904, 24 Sup. Court Reporter, 808). 185. Territorial Po'wer of Congress. The territories of the United States not included within the h'mits of any state may b^ governed directly by Congress under authority " to make all needful rules and regulations respecting the territory or other property belonging to the United States " (Art. IV, § 3, H 3). In the exercise of that power Congress may provide as it sees fit for a greater or less degree of local self-government in any portion of such territory. It may pro- vide for the organization of a territorial government in a speci- fied portion of territory set apart under a distinct name given to it, with executive, legislative, and judicial departments, may grant the elective franchise to persons within such territory having certain qualifications, and may authorize the election by them of members of the legislative body. The governor and the judges are appointed by the president. But such judges are not technically "judges of the courts of the United States," within the description of the federal constitution, and 265 266 Territorial Governments. [§ '^^ its provisions with reference to tenure of office of the judges the judicial department of the federal government are not ap- plicable to the territorial judges thus provided for, and the courts thus created are not courts of the United States, but courts of the territories, having such authority as Congress may prescribe {American Insurance Co. v. Canter and Clinton v. Englebrecht^. 186. The Constitution in the Territories. Serious questions have recently arisen as to whether all the provisions of the federal constitution are applicable in territory which is under the jurisdiction of the United States but outside the limits of the states. Some provisions of the federal consti- tution are by their terms applicable only to tlie states, and it may be assumed that the provisions of the constitution, as a whole, were primarily designed for a federal government exer- cising its powers with reference to territory and persons in- cluded within state limits. On the other hand, it is evident that when the federal constitution was framed and adopted it was contemplated that there should be territory within the jurisdiction of the United States which should temporarily, at least, not be within the limits of any state; and that there should be persons, subjects of the United States, who are not citizens of any states. Prior to the adoption of the federal constitution, the so-called Northwestern Territory had been organized by the Congress existing under the Articles of Con- federation, including the territory now embraced in the states of Ohio, Indiana, Illinois, Michigan, and Wisconsin ; and this territorial government was recognized as continuing to exist after the adoption of the federal constitution. It is not to be doubted that persons residing within the limits of this territory and subject to the jurisdiction of the United States were con- sidered citizens of the United States. As a matter of fact, the constitution of the United States has been expressly extended by acts of Congress to all the territory of the United States within the limits of the North American continent, and citizenship has been conferred either by treaties § 1 86] Constitution in the Territories. 267 of annexation or by action of Congress upon all persons be- coming subject to the United States within those limits ; so that there is no question as to the constitution having full force and effect, either by its own operation or by express action of the federal government, within such territory. But express provi- sion has not thus been made for the extension of the constitu- tion over Porto Rico and the Phihppine Islands, recently acquired by treaty with Spain ; nor has citizenship been ex- pressly conferred upon the inhabitants of such territory, and it is still, perhaps, not fully decided whether the general limita- tions found in the federal constitution on the powers of the federal government and the rights of citizenship under the fed- eral constitution have been extended to these islands and their inhabitants in consequence of acquisition by the United States. It has, indeed, been settled that the islands are not foreign terri- tory (see Insular Cases), and that the inhabitants, who have become permanently subject to the authority of the United States, are not aliens {Gonzales v. Williams). Something more will be said (below, eh. xxxiv) as to the condition of the inhabitants in the chapter relating to citizenship. Whatever may be the conclusion as to citizenship in the insular possessions, it is conceded that Congress has the power under the constitution to make such provisions as it sees fit, with reference to the government of the people within such insular possessions and to organize such local governments as it deems expedient; and it may confer upon the inhabitants such political rights as public policy may justify or require. The extent to which the inhabitants of this newly acquired territory shall enjoy the privileges of self-government cannot be determined otherwise than by action of Congress. CHAPTER XXXIII. RELATION OF THE STATES TO EACH OTHER. 187. References. J. Story, Constitution, §§ 1302-1313; J. R. Tucker, Constitiition,%%Tp']- 309; T. M. Cooley, Constitutional Limitations, *397 ; T. M. Cooley, Con- stitutional Law, ch. x; H. C. Black, Constitutional Law, ch. ix ; Kentucky V. Dennison (i860, 24 Howard, 66); Ex parte Keggel (1885, 115 U. S. 642 ; McCIain's Cases, 867) ; Lascelles v. Georgia {1893, 148 U. S. 537 ; McClain's Cases, 872) ; McCready v. Virginia ( 1876, 94 U. S. 391) ; Ward V. Maryland (1870, 12 Wallace, 418; Thayer's Cases, 1410) ; Paul v. Virginia {1868, 8 Wallace, 168 ; McClain's Cases, 855 ; Thayer's Cases, 1928); Blake V. McClung (1898, 172 U. S. 238; McClain's Cases, 859). 188. States Independent ; Inter-State Comity. As a general proposition it may be said that the states are independent of each other, and so far as they can have any rela- tions to each other or to the citizens of another state those relations are determined by the provisions of the federal con- stitution. The laws of each state have force only within its limits. The extent to which rights and obligations arising within one state are to be recognized in another is determined in general by the same rules of comity which apply between foreign governments ; that is, the states are said to be foreign to each other in deciding the effect to be given in one state to the laws of another. Nevertheless, just as between governments entirely foreign to each other, some principles obtain to which the term " pri- vate international law " or " conflict of laws " are usually ap- plied, thus contracts made in one state and valid where made are usually recognized as valid when it is sought to enforce or call them in question in another state. But the general subject of conflict of laws as affecting the validity of z68 §189] Extradition of Criminals. 269 contracts, the liability for injury done to persons or property, the recognition of marriages and divorces in another state and like matters, are beyond the scope of this treatise. The fact that the laws of one state cannot be enforced in another and that the authority of one state cannot be in any way exercised within the limits of another is to be especially borne in mind with reference to crimes against its laws. A crime is to be punished if committed against the laws of a state only within the limits of that state, and the courts of another state cannot take cognizance of such a crime for purposes of punishment ; nor has any state the authority to send its offi- cers into another state for the purpose of arresting and bringing back a fugitive from justice, save as provided by the federal constitution. 189. Extradition of Criminals. The federal constitution does provide, however, that " A per- son charged in any state with treason, felony, or other crime, who shall flee from justice and be found in another state, shall on demand of the executive authority of the state from which he fled be delivered up to be removed to the state having juris- diction of the crime" (Art. IV, § 2, IT 2). The purpose of such provision is that the fugitive may be duly tried and pun- ished. Between foreign governments the return of fugitives from justice fleeing from one country to another may be pro- vided for by treaty. But as the states cannot make treaties with each other, it was proper that, as between states, the matter be regulated by the constitution. It is to be noticed tliat while it is made the duty of the executive of any state to deliver up a fugitive from justice upon demand of another state, there is no method provided in the constitution by which such duty may be enforced; and though Congress has by statute regulated the matter (1793) it has never taken up the question of a refusal by a state executive to follow out that procedure. In each state there are statutory provisions with reference to demanding the return of fugitives from justice who have escaped 270 Interstate Relations. [§ '89 into another state, and for extraditing fugitives found in the state whose return is demanded by the executive authority of another state. It is regarded as proper, however, for the execu- tive upon whom the demand is made for the extradition of a fugitive from justice to inquire into the question whether such person is in fact a fugitive, that is, whether he has come into the state from another state where he is charged with having committed a crime, and until it appears that he is such fugi- tive, and that he has been in a proper proceeding charged with a crime in the state demanding his return, he will not be dehvered up. The crime for which a fugitive should be returned on proper demand may be any crime under the laws of the state demanding his return, whether it be a crime under the laws of the state from which his return is demanded or not (Kentucky v. Demisoii), and the state to which he is returned may put him on trial for any offence which he has committed in that state, though it be a different crime from that for which he has been brought back (Lascelles v. Georgia). Although the constitutional provision does not refer to the territories. Congress has by statute covered such cases of fugitives {Ex parte ReggeT). The succeeding paragraph of the federal constitution relating to persons held to service or labor in one state under the laws thereof who have escaped into another, and requiring that such persons shall not be discharged from such service or labor by any laws or regulations of another state, but shall be delivered up on claim of the party to whom such service or labor may be due, was evidently intended primarily to apply to slaves escap- ing from one state to another; and fugitive slave laws were passed by Congress in order to make effectual this provision. But since the abolition of slavery throughout the United States by the adoption of the Thirteenth Amendment, this provision has ceased to have any practical value, though it doubtless applies to apprentices, and perhaps might apply to persons convicted of crime in one state and sentenced to labor as a punishment, but who have subsequently escaped to another state. § 1 9°] Privileges and Immunities. 271 190. Privileges and Immunities of State Citizenship. Even in the absence of express treaty comity between coun- tries foreign to each other usually involves during time of peace the privilege of the subjects of one country to come into the territory of the other, to conduct business and acquire property, and to have the protection of the judicial tribunals to substan- tially the same extent as enjoyed by subjects of the latter ; especially is this true where the subjects of one country become permanent residents of the other, although they may not ac- quire citizenship. The only substantial exception to this rule of comity is as to the ownership of real estate. By the law of England, as it existed when the colonies became independent, an alien could not, in general, acquire title to real estate by inheritance. In many of the states the disability of aliens to acquire and hold real estate has been removed, while in others it has been preserved. In order that such questions as this might not be left uncer- tain as between the states, and dependent on comity merely, it was provided in the federal constitution that " The citizens of each state shall be entitled to all privileges and immunities of 6itizens in the several states " (Const. Art. IV, § 2, IT i). The manifest result is that all the privileges and immunities enjoyed by the citizens of a state by virtue of the fact of citizenship may also be enjoyed by citizens of any other state ; and this involves a prohibition of any discrimination in the laws of a state against citizens of other states as compared with the state's own citizens. Thus a state statute is unconstitutional which restricts the pursuit of some particular business to citizens of the state and prohibits citizens of other states from engaging in such business. But political privileges, such as the right to vote and hold office and the privilege of serving on juries and the like, can be limited to citizens of the state, and a person going from one state to another does not carry into the latter state the privileges which he enjoyed in the former, for these are matters to be regulated by each state for itself. The privilege of practising law in a 272 . Interstate Relations. [§ 19° state may be limited, undoubtedly, to perAins who are citizens of the state. There are some privileges also, such as the right to fish in the public waters and to hunt game within the state limits {McCready v. Virginia), which are regarded as incident to the enjoyment by the citizens or inhabitants of the state of the public property belonging to the state as representing its people, and the state may exclude from the enjoyment of these privileges persons who are not inhabitants of the state. The following are privileges and immunities of citizenship which cannot be denied by a state to citizens of other states : pro- tection by the government ; enjoyment of life and liberty ; the right to acquire and possess property, subject^ of course, to the general police power, which, however, must be exercised with- out discrimination as between citizens of the state and citizens of other states ; the right of a citizen of one state to pass through or reside in any other state ; the right to institute and maintain actions in the courts of the state {Ward v. Marylana). The equality of privileges thus guaranteed is equality with citizens, that is, with natural persons who are entitled to citizen- ship in the state in which they have their permanent residence. Corporations are artificial persons, and while they are regarded as having in many respects the same rights as natural persons and protected by the guaranties of rights which are accorded to natural persons, they are not and cannot be citizens in the full sense and meaning of the term. Therefore, a state is not bound by the provisions of the federal constitution to accord to corporations created in other states all the privileges granted to state corporations, much less all the privileges and immunities possessed by natural citizens. While it is usual for a state to allow corporations created in other states to carry on business in that state, it is not a violation of the provision of the federal constitution to impose restrictions on such foreign corporations which are not imposed on corporations created in the state, or to discriminate as against foreign corporations in favor of domestic corporations ; and it is isegarded as permissible to a state to exclude foreign corporations altogether or to prescribe special conditions on which all foreign corporations or foreign § igi] Credit to Records. 273 corporations doing a particular class of business sliall be allowed to engage in business within the state {Paul v. Virginia and Blake V. McClung). It does not follow that a foreign cor- poration can be deprived of property lawfully acquired within the state without due process of law, or that it can be denied within the state the equal protection of the laws as to property which it has lawfully acquired. 191. Faith and Credit to Acts, Records, and Judgments of the States. By comity between foreign governments judgments of courts in one country are usually treated as valid in another country ; that is to say, if in an action brought in the courts of one coun- try having jurisdiction of the case, a judgment ■ is rendered determining the rights of the parties to the action, this judgment is regarded as conclusive between the same parties in an action involving the same issues brought in another country, and can only be impeached or disregarded on proof that the judgment was not valid where rendered. This rule of comity existing between countries wholly foreign to each other is made a con- stitutional rule as between the states by provision of the federal constitution that " Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws pre- scribe the manner in which such acts, records, and proceedings shall be proved and the effect thereof" (Const. Art. IV, § i, IT i)- This provision extends not only to judgments rendered and the records thereof, but also to the public statutes of a state, so that if it becomes necessary to determine in the courts of one state what the public statutes of another state are, the fact may be shown by the legislative records of the state whose laws are in question. Congress has made provision (first in 1790) for the method of proving in any state the public acts, records, and judicial pro- ceedings of any other state. The public laws of any state are presumed to be known to persons within that state and the courts of the state will take judicial notice of them without 18 274 Interstate Relations. [§ 'P' proof; but the laws of another state are not thus presumed to be matter of general knowledge and the courts will not take judicial notice of them, but they must be proven like other facts when they are in any way called in question. However, the courts of a state must take judicial notice of the constitution, laws, and treaties of the United States ; and likewise the courts of the United States held in any state must take judicial notice of the constitution and laws of that state. The laws of another state or country are to be proved as matters of fact ; a court cannot in general take judicial notice of them. Part VII. Relations of the Individual to" the Government. CHAPTER XXXIV. CITIZENSHIP. 192. References. J. Story, Constitution (Cooley's ed.), Suppl., §§ 1930-1937; J. R. Tucker, Constitution, §§ 174, 389; J. I. C. Hare, Constitutional Law, 515- 522; J. N. Pomeroy, Constitutional Law, § 102; J. A. Jameson, Constitu- tional Conventions, §§ 358-361 ; J. W. Burgess, Political Science, I, 218-232 ; T. M. Cooley, Constitutional Law, ch. xiv, § i ; H. C. Black, Constitutional Law, §§ 224-231 ; F. Van Dyne, Citizenship of United States; James Wil- son, Lectures on Jurisprudence (Andrews' ed.), II, ch. xi ; I. B. Richman, Citizenship of United States (Pol. Sci. Quart., V, 104) ; A. P. Morse, Civil and Political Status of Inhabitants of Ceded Territories (Harv. Law Rev., xiv, 262) ; J. B. Thayer, Cases on Constitutional Law, notes, pp. 459 and 464; United States v. Wong Kim Ark (iSgS, i6g U. S. 649; McClain's Cases, 964); Elk v. Wilkins {1884, 112 U. S. 94); Downes v. Bidwell' (igoi, l8z U. S. 244) ; Gonzales v. Williams (1904, 24 Sup. Court Re- porter, 177); Boyd V. Thayer (1892, 143 U. S. 135; McClain's Cases, 423) ; Ward v. Maryland (iSjo, 12 "Wallace, 418 ; Thayer's Cases, 1410) ; Slaughter-House Cases (1872, 16 Wallace, 36; Thayer's Cases, 516; Mc- Clain's Cases, 18); Civil Rights Cases (1883, 109 U. S. 3; McClain's Cases, 37 ; Thayer's Cases, 554). 193. Citizenship in the States. Prior to the adoption of the Fourteenth Amendment to the federal constitution there was no uniform rule as to state citizen- ship. (See above, § 100.) The sole power of providing by ^7S 276 Citizenship. [§ 193 uniform law for the naturalization of aliens was in Congress, and perhaps it was to be assumed that the rule recognized in England that birth within the jurisdiction of a state was sufficient to constitute citizenship was the only rule on the subject. But since the adoption of the Fourteenth Amendment, which spe- cifically provides that " All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside," it is assumed that citizenship in a state is acquired by permanent residence therein of any person who by birth or naturalization has become a citizen of the United States ; and state citizenship is therefore determined by this test. It is to be noticed that citizenship in a state is not deter- mined by any prescribed term of residence. A state may require residence for a specified period as a condition for enjoyment of the elective franchise ; but the moment that residence in a state by one who is a citizen of the United States commences, or the moment one who resides in a state acquires citizenship in the United States, that moment such person becomes a citizen of the state. By residence is meant, not merely a tem- porary abiding within the state, but residence in a legal sense, that is, a permanent residence. The term in this connection is synonymous with domicil and involves residence in fact, with intent that it shall continue until subsequent removal with the intent of abandoning such residence and acquiring another. While it is usual to confer political privileges only upon citi- zens, the states may, if they see fit, confer at least some of these privileges upon persons who are not citizens. In several of the Western states persons who have declared their intention to become citizens of the United States, although the required period of residence entitling them to naturalization has not been completed, have been allowed to vote and hold office ; but such persons do not thereby become citizens of the state, not being citizens of the United States. It would thus appear that not only may persons who are citizens of a state be denied political t privileges, because their term of residence in the state has not been of sufficient duration, but on the other hand persons may § 194] By Birth. 277 be given political privileges who have not yet acquired citizen- ship. It is apparent that there is no necessary connection between the two, and that citizenship is to be determined by the federal constitution and laws, while the enjoyment of pohtical privileges is dependent upon the constitution and laws of the state. (See below, § 198.) Of course, in the territory within the jurisdiction of the United States and not within the juris- diction of any state, political privileges, if any, are enjoyed by virtue of the laws of the United States. The distinction between the right of citizenship and the enjoyment of political privileges is made clear by noticing that political privileges are conferred only on adults and in most of the states only on adult males ; while all persons, men, women, and children, are citizens if they come within the description of citizenship found in the constitution and laws. 194. Citizenship in the United States by Birth. One becomes a citizen of the United States either by birth or naturaUzation. By the simple language of the Fourteenth Amendment "All persons born in the United States and sub- ject to the jurisdiction thereof are citizens " ; but interpreta- tion has been necessary in applying this language to particular classes of cases. For instance, an Indian whose parents at the time of his birth were members and subject to the jurisdiction of his tribe, although he may have been born within the terri- torial limits of the United States, is not a citizen by birth and can become a citizen only by naturalization {^Elk v. Wilkins) ; and this can be effected only under special laws relating to In- dians, not under the general naturalization laws. If, however, at the time of his birth his parents, although not citizens of the United States, are not members and subject to the jurisdiction of a tribe, then he is no doubt a citizen by birth, for citizenship of parents is not essential if such parents are subject to the jurisdiction of the United States at the time when the person in question is born within the territory of the United States. Thus it has been held in United States v. Wong Kim Ark, that although the subjects of China cannot become citizens, never- 278 Citizenship. [§ 194 theless the children of Chinese parents having a permanent residence within the United States are citizens by birth. A proof that the birth which confers citizenship must be not only within the actual territorial limits of the United States, but also within the jurisdiction of the United States, is the recog- nized rule applied to children born within the territorial limits to alien parents who are only temporarily within such limits. In such cases a right of choice is recognized ; if the child re- mains within the limits of the United States until he reaches years of discretion he is entitled to claim citizenship by birth ; while on the other hand if before years of discretion are at- tained he is taken by his parents to the country of their alle- giance and elects to remain there he is an alien to the United States notwithstanding his birth. As to all these matters there is some uncertainty, but by principles of international law which are recognized by the United States, as well as in all other civilized countries, chil- dren born to ambassadors and foreign ministers temporarily residing in one country as the representative of a foreign gov- ernment are regarded as having been born within the jurisdic- tion of the government which the ambassador or minister represents and to which he owes allegiance, and not within the jurisdiction of the country in which he is thus temporarily residing. This principle is appHed to children born abroad to persons who are citizens of the United States in the foreign service, and such children though not born within the actual territorial hmits of the United States are by fiction said to have been born within the jurisdiction of the United States and to be citizens by birth, unless perhaps they have elected to remain permanently abroad and thus disavow the assumption of United States citizenship. In 1855 Congress enacted statutory provi- sions still in force by which it is declared that children born outside the limits of the United States whose fathers are citizens thereof are citizens by birth. An analogous rule is applicable, no doubt, to children born on the high seas on vessels sailing under the flag of the United States, and such persons may claim to be citizens of the United States by birth although the actual § i9S] By Naturalization. 279 place of birth was not within the territorial limits of the United States. The rule, in short, seems to be this, that persons born within the territorial limits of the United States are citizens by birth without regard to the citizenship of their parents at the time of birth, with the recognized exception, that if the parents are not subject to the jurisdiction of the United States by reason of being members of an Indian tribe, or foreign ambassadors or ministers, or foreign subjects on board vessels of another na- tionality, or perhaps foreign subjects temporarily sojourning in the United States, then the place of birth is not controlling; while on the other hand persons born outside of the territorial hraits of the United States whose parents are citizens of the United States in its foreign service, or are upon United States vessels, or are subjects of the United States temporarily sojourn- ing abroad, may claim United States citizenship on reaching the age of discretion if they so desire. The status of persons permanently residing within the Philip- pine Islands and the Island of Porto Rico at the time of acquisition of such islands from Spain seems to be still in doubt ; for no provision was made in the treaty with Spain, nor has any provision been made by act of Congress, respecting the acquisition of citizenship by such persons ; but it will prob- ably be decided that children born within such insular posses- sions of the United States subsequent to the date of their acquisition, their parents at time of birth being permanent resi- dents of such territory, are citizens by birth irrespective of any question as to the citizenship of such parents ; for, as already indicated, citizenship of the parents is not the test in determining citizenship of the children. 195. Citizenship in the United States by Naturalization. It lies within the power of the United States government, either by treaty with a foreign power or by act of Congress, to confer citizenship on classes of persons without regard to birth or naturalization. Thus, when foreign territory is acquired by treaty, it is competent to provide in the treaty that the inhabi- 2 8o Citizenship. [§ 196 tants of the territory by the fact of continuing to permanently reside within such territory become citizens. So it is com- petent for Congress to provide that on the division of land in an Indian reservation among the members of the Indian tribe to which the reservation is recognized as belonging, the Indians who accept their shares under such apportionment become citi- zens. (It has been so provided in acts of 1887 and other stat- utes.) When the independent state of Texas was admitted into the Union by act of Congress, the citizens of the state became citizens of the United States. It has even been suggested (in Boyd v. Thayer) that by the admission of a state into the Union which has previously had a territorial form of govern- ment, persons who were recognized by the territorial laws as possessing political privileges became citizens of the United States by virtue of the admission of the state, although they had been enjoying such political privileges without being citizens of the United States. Without attempting to specify all the methods of naturalization it is sufficient to say that citizenship by naturalization may be conferred by treaty or by statute, applicable to particular classes of persons, or by compliance on the part of any particular persons with the naturalization laws. It still remains to be definitely determined whether by the acquisition of territory under a treaty which makes no provision as to citizenship, and without any act of Congress on the sub- ject, the permanent inhabitants of such territory become citi- zens. It has, however, been settled that when foreign territory by treaty becomes territory of the United States, the persons permanently residing and continuing to reside therein whether they have become citizens or not are no longer aliens, and the statutes of the United States regulating immigrants from foreign countries are not applicable to such persons {Gonzales v. Williams). 196. Privileges pertaining to United States Citizenship. Political privileges are not necessarily incident to citizenship (above, § 193), but citizenship is important with reference to §196] Privileges of Citizens. 281 the protection to which the citizen is entitled while outside of the limits of the United States, and also as to privileges to which he is entitled within the United States under the federal constitution and laws and under the constitutions and laws of the states. A citizen abroad is not exempt from local jurisdiction in the country where he is sojourning or temporarily residing, but it is the duty of the United States to secure to its citizen abroad the equal protection of the laws of the country where he is sojourning, and in countries which are regarded as not fully civilized, such as Turkey and China, he is accorded the specific privilege of being tried for crimes or of having his civil rights determined by proceedings before officers who represent the United States government. (See above, § 165.) It is impossible to state fully the privileges and immunities which a citizen of the United States enjoysand is entitled to have protected as distinct on the one hand from mere political privileges, and on the other from those civil rights which are guaranteed to all persons by the federal constitution. It is evident that some such privileges and immunities must be recognized as incident to federal citizenship, for the Fourteenth ( Amendment, after specifically describing federal and state citi- i zenship, provides that " No state shall make or enforce any law \ which shall abridge the privileges or immunities of citizens of the United States." These privileges and immunities are, how- ever, different from those pertaining to.citizens of a state and which are not to be denied in any other state (see above, § 190). It has been suggested that among the privileges and immunities incident to federal citizenship are the right to participate in foreign and inter-state commerce, to make use of the navigable waters of the United States, to enjoy the postal privileges, to petition the federal government and visit the seat of govern- ment, to participate on equal terms in the purchase of public lands, and to sue in the federal courts, if by the provisions of the constitution and laws regulating the jurisdiction of such courts there is a right to bring such suit. (See Ward v. Mary- land and Slaughter- House Cases.) Indeed it might safely be 282 Citizenship. [§ 196 said that the right of a citizen of the United States to remain within its limits, or to go into a foreign country, or to return to the United States from such country, or to reside in such part of the United States as he may see fit, and to enjoy, without discrimination against him, all the benefits and the protection of the constitution, laws, and treaties of the United States are privileges and immunities which cannot be denied to the citizen either by the federal or state government. It is doubtful whether the provision in the Fourteenth Amendment was essential as a guaranty of any of these rights. They would, undoubtedly, have been fully recognized and pro- tected had the amendment never been adopted. The im- mediate occasion for the adoption of that amendment was the fear that the negroes would not be accorded equal protec- tion with white persons in some of the states, and accordingly citizenship was so defined as to include negroes born within the limits of the United States and subject to the jurisdic- tion thereof. But on the other hand it must not be assumed that the Fourteenth Amendment is of no significance otherwise than as applied to colored persons. The provisions of the amendment are general in terms and are of universal applica- tion, and they enunciate rules which although they may have been previously recognized were thought to be of so funda- mental a character that their definite statement was important. The first eight amendments to the federal constitution con- tain general guaranties wiiich were primarily intended as re- strictions on the powers of the federal government, but since the adoption of Amendment XIV the question has been raised whether these guaranties, which were not originally intended as limitations on state powers, have not become privileges and immunities of the citizens of the United States which the states cannot abridge. For instance, in Amend- ment V it is provided that no person shall be held to an- swer for a capital or otherwise infamous crime unless on the presentment or indictment of a grand jury, and in Amendments VI and VII the right to trial by jury in civil and criminal cases is provided for. Now there is no reasonable question but that §196] Privileges of Citizens. 283 these provisions as originally adopted related to proceedings in federal courts and not to those in the state courts, and that a state might by proper amendment of its constitution and change of its laws substitute some other form of accusation and indictment in criminal cases and some other form of trial than the trial by jury as generally known in all the states of the Union in which the common law is recognized. Since the adoption of Amendment XIV, which contains the further pro- vision that no state shall " deprive any person of life, liberty, or property without due process of law," it is clear that some form of accusation as the basis of a trial for crime and some form of trial in a judicial tribunal in either criminal or civil cases must be provided ; but it seems to be well settled that it was not intended by the adoption of the Fourteenth Amendment to restrict the state as to the matters referred to in the first eight amendments and that those amendments continue to be guar- anties as against the exercise of federal power, and not limita- tions upon the power of the states. (See above, § 22.) CHAPTER XXXV. POLITICAL PRIVILEGES. 197. References. J. Story, Constitution, §§ 577-586, and (Cooley's ed.) §§ 1969-1974; T. M. Cooley, Constitutional Liinitations, ch. xvii ; J. I. C. Hare, Constitutional Law, 522-530; J. N. Pomeroy, Constitutional Law, §§ 206-215; T. M. Cooley, Constitutional Law, ch. xiv, § 2 ; H. C. Black, Constitutional Law, §§ 232-234; Minor v. Hafpersett (1874, 21 Wallace, 162; McClain's Cases, 974; Thayer's Cases, 459); Ex Parte Siebold (1879, 100 U. S. 371 ; Thayer's Cases, 326) ; Ex pa7-te Yarborough (1883, no U. S. 651 ; Thayer's Cases, 551) ; Wiley v. Sinkler (1900, 179 U. S. 58). 198. Federal and State Privileges. The right to participate in the affairs of government and the conditions under which such right may be exercised are primarily within the control of the respective states ; but in the territory of the United States outside of state limits they are subject to the control of Congress (see above, § 193). While the general theory of our constitutional system involves a large and full participation by the people in the affairs of government, such participation has never been recognized as the natural right of an individual nor as a right necessarily incident to citizenship {Minor v. Happersetf). The right of suffrage, the right to hold office, the right to serve on juries, and other like so-called rights are in reality duties and privileges imposed and granted for the public good and not for individual benefit. The states have from the beginning had the power to impose these duties and accord these privileges as tliey should see fit, and the constitution and laws of the state have been and con- tinue to be the source of political privileges in the states, save as certain forms of discrimination are prohibited by the Fifteenth Amendment. Therefore, a person who has enjoyed the privi- 284 § 2oo] Suffrage. 285 lege of voting or holding office in one state does not necessarily have the like privilege in another state. As a matter of fact the proportion of citizens who have political privileges in many of the states does not now include more than about one-fifth of the whole number, for in all states children, and in most states women, although they become citizens by birth or naturalization as fully and completely as adult males, are excluded from partici- pating in elections, the holding of office, and service on juries. 199. The Fifteenth Amendment. After the full rights of citizenship had been by Amendment XIV conferred upon negroes who came within the description of citizenship enunciated in that amendment, it was thought desirable that such persons should not be excluded on account of their race or color from participation in affairs of government under the same conditions imposed as to white persons ; and accordingly Amendment XV was incorporated into the federal constitution in these words : " The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude." 200. Suffrage and Elections. From what has already been said in this chapter, it is appar- ent that the elective franchise is not a right but a privilege, dependent in the states on the constitution and laws of each state, subject only to the limitations imposed by Amendment XV. It is not a necessary incident of citizenship, although it is now generally conferred in the states on all adult male persons over the age of twenty-one years and in some states on women as well as men. But in all the states there are some conditions, for instance, that the person desiring to vote must have been a resident of the state for a specified period, or that he shall have been registered. Persons convicted of a crime are usually ex- cluded, and in some states those who have been guilty of bribery or of engaging in a duel, or those who have failed to pay a poll tax. 286 Political Privileges. [§ 200 Thus it is apparent that not even all adult male citizens are entitled to exercise the elective franchise, for a citizen of the United States coming into a state with the intention of perma- nently remaining becomes at once a citizen thereof and his rights as a citizen cannot be made dependent upon length of residence. The only federal officers chosen by election are the president, the vice-president, the senators, and the members of the House of Representatives. The president and vice-president, as already explained (see above, § 40), are chosen by presidential electors, and these are selected in each state as may be provided by the laws of the state ; so that the qualifications of the electors who vote for presidential electors are left to be prescribed by the state law. Senators are chosen by the legislatures of the states (Const. Art. I, § 3, IT i). Members of the House are chosen " by the people of the several states " ; and it is provided that the electors in each state voting for members of Congress " shall have the qualifications requisite for electors of the most numer ous branch of the state legislature " (Const. Art. I, § 2, IT i). In this sense the right to exercise the elective franchise with reference to the selection of members of Congress is a right en- joyed by reason of the provision of the federal constitution {^Ex parte Yarborough and Wiley v. Sinkler), and yet there is no uniform set of qualifications applicable throughout the United States ; but the specific description is to be found in the laws of each state. The method of conducting elections and determining the result is regulated by the constitution and laws of each state, but provisions for a secret ballot are now almost, if not quite, universal in the states, and in many of them the Australian Ballot System has been adopted, by which the state authorities provide a uniform ballot containing the names of all persons to be voted for, which each voter marks and deposits as provided by law. The general objects of the state statutes regulating elections are to exclude disqualified persons from participating ; to enable each voter to express his individual choice without fear of criticism and without being influenced by bribery or in- § 2oi] Holding Office. 287 timidation and without fear of oppression ; and to secure a fair and honest counting of the ballots and determination of the result of the election. By the federal constitution (Art. I, § 4, IT i) the times, places, and manner of holding elections for senators and repre- sentatives are as prescribed in each state by the legislatures thereof, unless Congress has made regulations on the subject. (See above, § 33.) It is, however, now specifically provided (Act of 1899) that votes for representatives in Congress must be by written or printed ballot or voting machine, the use of which has been duly authorized by the state law. The only congressional provisions now in force as to the method of con- ducting elections are those prohibiting military or naval officers from interfering with the freedom of elections (Act of 1865), and prohibiting distinction of race, color, or previous condition of servitude (Act of 1870, embodying substantially the provi- sions of Amend. XV). Provisions of the act of 1865, for the federal supervision of elections, were repealed in 1894. But the right of Congress to provide for regulation-of elections of mem- bers of the House of Representatives is fully established {Ex parte Siebold). 201. The Holding of OfiSce. The constitution of the United States prescribes the qualifi- cations for president, senators, and representatives (Art. I, § 2, 1 2, § 3, 13; Art. II, § I, IT 4) and the qualifications for ap- pointive officers are prescribed by the statutes regulating their appointment. The state constitutions contain similar provisions as to qualifications for the principal elective officers, and quali- fications for other officers may be fixed by statute. In the absence of any specific statutory provision on the subject it is presumed that those persons who are qualified voters under the constitution and laws of the state are qualified to hold office. It is apparent, therefore, that a public office or the privilege of hold- ing a public office is not an individual right, but is a privilege conferred by law. However, one who has been duly elected to a public office is usually regarded as having as to the discharge 288 Political Privileges. [§ 202 of the duties of that ofifice and the enjoyment of the compensa- tion and emoluments attached thereto by law a property right which the courts will recognize and protect. On the other hand, such right is generally regarded as dependent on the continu- ance of the office, and unless there is some constitutional re- striction in the way, the right may be terminated by abolishing the office and the office-holder has no ground for complaint. Removal from an office which continues can, however, only be effected by impeachment or some other proceeding authorized by law. These matters are so far controlled by the peculiar provisions of the constitution and laws of each state that further general discussion is impracticable. 202. Jury Service. The privilege of serving on juries, when selected for the pur- pose according to the provisions of law, is sometimes spoken of as a political privilege analogous to that of holding office, and the method of selection and the qualifications are regulated by statute. The states are not subject to any limitations in this respect by the federal constitution save that the provision of the Fourteenth Amendment, by which all persons are guaranteed the full protection of the laws, has been held to imply that no class of persons shall be excluded from serving on juries on account of race or color. Aside from this implied limitation, the states may impose such restrictions in this respect as they see fit. Part VIII. Civil Rights. CHAPTER XXXVI. GUARANTIES TO THE INDIVIDUAL. 203. References. J. R. Tucker, Constitution, ch. i; J. W. Burgess, Political Science, I, 174-232; F. Lieber, Civil Liberty and Self-Government, chs. i-iii; W. W. Willoughby, Nature of the State, chs. iv, v ; J. Kent, Commentaries, lect. xxiv ; H. C. Black, Constitutional Law, ch. xviii ; T. M. Cooley, Constitu- tional Law (3d ed.), 246-248; V/. Blackstone, Commentaries, Hammond's ed., I, pp. 47, 54, and notes 20 and 23, pp. 144, 158 ; J. Wilson, Lectures on Jur^ sprudencj (Andrews' ed.), II, ch. xii. 204. Natural Rights Protected. Organized government has for its object the protection of the individual against undue interference on the part of others with his enjoyment of life and the beneficial employment of his faculties. The statement in the Declaration of Independence in substance that governments are instituted among men to secure to them the inalienable privileges of life, liberty, and the pursuit of happiness is a practically sound statement of political philosophy. The statement made in the same connection, that all men are created equal, is, of course, to be construed in the connection in which it is made as meaning that all persons have equal rights to protection and enjoyment of life and liberty and in the employment of their faculties as they see fit, so far as the public welfare does not require that they be restricted in order that others may have the same enjoyment of life, liberty, and employment of their faculties. The succeeding statement of 19 289 290 Guaranties to the Individual. [§ 20+ that instrument, that governments derive their just powers from the consent of the governed, is also to be understood in a general sense as a sound statement of poUtical philosophy. Without a condition of equality as to rights to be enjoyed, there could not be a government which would substantially represent the views and wishes of a majority of the people. It is evident that the consent of the governed here referred to is simply the general assent which the majority of the people give to the government under which they live and which they choose to obey. It is plainly not meant that the government has no authority over those who do not see fit to assent to its exercise of authority. It m\ist be borne in mind that the Declaration of Inde- pendence was a declaration of the right to throw off the author- ity of an established government and institute a new government in its place. It was not intended, nor does it purport to be a statement of the obligations owed by the individual to the established government, nor the obligation of the government to the individual ; but the purposes of government will not be carried out in accordance with the principles of the Declaration of Independence, unless all men are guaranteed equality before the law, that is, the equal right to protection under the law in the enjoyment of individual liberty, so far as it can be secured without depriving other persons of substantially the same degree of freedom and opportunity. The rights of person and property which are protected by constitutional provisions are sometimes spoken of as among the natural rights of human beings. In some sense this is proper, for they are among the rights of individuals generally recognized by all civilized governments ; but in a strict sense there are no rights recognized by the law except legal rights. However, it is not improper to say that rights which are recognized and protected under our system of law and which are such as are generally protected by law everywhere are on that account pro- tected as natural or inherent rights of human beings. Closely connected with the theory of natural rights which is suggested in the Declaration of Independence and announced § 204] Natural Rights. 291 in many of the state constitutions, and whicli must be regarded as a part of the philosophical explanation of government rather than as a part of constitutional law, is the theory of the so-called social compact, also referred to in many state constitutions as well as in the Declaration of Independence, to the effect that the obligation of the citizen to the government is one arising only by the implied consent to be governed. This theory, which seems to have originated with the English philosophers Hooker, Hobbes, and Locke during the seventeenth century, was fully exploited by Rousseau's Contrat Social (1762), and obtained wide recognition in England, France, and America. It is recognized by Blackstone in his Commentaries on the Laws of England, repubhshed in America in 1765, and generally accepted throughout the colonies as a correct exposition of the English constitution and system of laws. The social compact theory has now, however, been generally discredited as a philo- sophical doctrine and is no longer of any significance in the explanation of the powers of a constitutional government. It is to be noticed that nothing is said in the Declaration of Independence as to equality in the ownership of property, or in social condition, or in capacity for the enjoyment of happiness. While the tendency of civilization, especially civilization which has been influenced by Christianity, is to give better opportunities to those who by reason of lack of health, strength, or capacity are under a disadvantage in the competition of life, it has not been found possible nor probably will it be found possible in any social condition which can be conceived of, to eliminate differences of condition. The existence of a competitive struggle for betterment of condition seems to be inherent in the human constitution ; but just and wise governments give protection to the individual in order that he may not be deprived of the oppor- tunity of life, liberty, and the beneficial enjoyment of his faculties so far as his strength and capacity are employed in ways not interfering with the enjoyment of like opportunities by others. It is also to be noticed that nothing is said in the Declaration of Independence as to political privileges or participation in the affairs of government. It is evident that governments 292 Guaranties to the Individual. [§ 205 established for the securing of the highest possible welfare of their subjects will necessarily afford some participation in public affairs on the part of those who are to be governed and who have in general the qualifications fitting them for such participa- tion. It is conceivable that a monarchical form of government might secure the freedom and prosperity of its subjects to a fuller degree than a popular government, but this would be so only if the ruler or the members of the ruling class considered the interests of all its subjects as equally important with his or their own interests ; and as this is not consistent with human nature, it is essential that a government which shall have for its sole object the best interests of all the people who are quali- fied to participate in such a government shall afford them the opportunity of doing so. The extent of such participation must be determined on broad principles of public policy and in any particular government largely in accordance with the established and customary forms, for it is the efficient administration of the system of government to which a people are accustomed rather than any theoretical perfection of the system which pro- duces the most satisfactory results. It is evident, therefore, that there is a fundamental distinction between political rights and individual rights. The enjoyment of political rights is simply a means for accomplishing the ulti- mate result of affording the best protection to individual rights, that is, the largest opportunities which may be given to one individual consistently witli the enjoyment of similar rights by others. Under the general head of civil rights, it is now proposed to discuss briefly the various guaranties found in the federal and state constitutions which are intended as restrictions on the powers of the government, in order that the enjoyment of the largest practicable measure of liberty and opportunity shall be secured to the individual. 205. Classification of Individual Rights specially guaranteed and protected. The guaranties found in the state and federal constitutions which are intended for the protection of the individual in his § 205] Individual Rights. 293 person, his liberty, and his property have not been the result of any theorizing as to what ought to be secured to. the individual by way of enjoyment ; they have been the result of experience, and they relate to the supposed respects in which it has been found necessary to limit the powers of government in order that the largest practicable measure of individual freedom and opportunity may be secured. Nearly all of them may be traced more or less directly to struggles on the part of the people against the unjust exercise of powers of government in England and in this country. The guaranty of the right to " life " seems to be intended as a safeguard against inflicting death on persons who are regarded as obnoxious to the government, otherwise than as the result of a regular and orderly procedure for the punishment of crime ; hence, the provisions with reference to the method of accusation, trial, and punishment may be regarded as guar- anties intended for the protection of the right to life. But liberty is equally imperilled by criminal proceedings which are not in accordance with regular and orderly methods, and by imprisonment inflicted as a punishment for crime for which there has not been a proper conviction. Therefore, the provisions with reference to the methods of criminal procedure are guaranties both as to life and liberty, and these will be considered in a subsequent chapter as among the provisions intended for the protection of civil rights, although in a popular sense immunity from unjust or illegal criminal punishment is not classified among the civil rights of the individual. The enjoyment of the largest measure of liberty which can consistently be guaranteed by organized government to the individual involves, however, much more than protection against unlawful physical restraint. Liberty is a most comprehensive term. It suggests, not only freedom of action, but the unre- stricted enjoyment of the result of beneficial activity so far as such freedom is not inconsistent with like freedom on the part of others. Civil liberty is therefore impaired when individuals are deprived of protection in the acquisition and enjoyment of property, for the accumulation of property is one of the most 294 Guaranties to the Individual. [§ 205 substantial results of the freedom of action, the desire for acquisition being one of the strongest desires of human beings. Hence, proper guaranties of civil liberty involve guaranties of property rights and of rights to pursue profitable occupations, and to make and enforce contracts. The social instincts involve a desire to communicate with others, either for the mere pleasure of social intercourse or for the purpose of persuading or inducing others to act in accord- ance with one's wishes or for his benefit. Therefore, civil liberty is unduly restricted if the privilege of writing and speak- ing one's views and sentiments, so far as the privilege may be exercised without involving injury to others, is impaired or taken away. Hence, the so-called freedom of speech and the press .is among the rights protected by constitutional guaranties. Among the privileges most highly prized are those involving the enjoyment of religious forms and observances according to the dictates of individual conscience. Therefore, among the provisions for securing civil liberty are those prohibiting the undue interference with religious beliefs and the expression thereof in suitable forms. The constitutional provisions relat- ing to the protection of these various forms of civil liberty will be discussed in succeeding chapters. Although the first eight amendments to the federal constitu- tion are limitations only upon the powers of the federal govern- ment, and serve as protections of the rights therein guaranteed as against the exercise of federal authority, and have no appli- cation as limitations on the exercise of authority by the state, nevertheless they correspond to provisions found in many of the state constitutions which are limitations upon state power, and the clauses of the federal constitution may therefore be made the text for discussion in separate chapters of the various rights which are usually guaranteed by state constitutions as well. And it will be convenient to follow the order of the clauses as they appear in these amendments in discussing the various topics suggested. CHAPTER XXXVII. RELIGIOUS LIBERTY. 206, References. J. Story, Constitution, §§ 1843-1849, 1870-1879; T. M. Cooley, Consti- tutional Limitations, ^h. xiii ; J. R. Tucker, Constitution, § 326; J. Bryce, American Commonwealth, ch. ciii ; T. M. Cooley, Constitutional Law, ch. xiii, § I ; H. C. Black, Constitutional Law, §§ 196-198; Pfeiffer v. Board of Education of the City of Detroit (i%Ci?,, 118 Mich. 560; McClain's Cases, 879) ; State ex rel. Weiss v. District Board (1890, 76 Wis. 177 ; iVIcClain's Cases, 882); Reynolds v. United States (1878,98 U. S. 145; McClain's Cases, 883). .207. Religious Equality. With reference to religious liberty, it is provided in Amend- ment I, that "Congress shall make no law respecting the estabhshment of religion or prohibiting the. free exercise thereof," and in the constitution as originally adopted it is declared that "no religious test shall ever be required as a qualification to any office or pubUc trust under the United States " (Art. VI, ^ 3). The prohibition of religious tests as a qualification for holding office is now of universal recognition throughout the United States, and originated, no doubt, with the protest in England against the exercise of authority on the part of the government, the reigning family of which belonged to one religious sect, in excluding from participation in public affairs those of other sects. This form of religious liberty has now been practically established in England, although complete religious equality has not been estabhshed in that country. Some state constitutions have an additional provision analo- gous in its nature, that no person shall be incompetent to give evidence in court in consequence of his opinion on the subject of religion ; but notwithstanding such a provision, it is usually regarded as permissible to inquire into the question whether a 295 296 Religious Liberty. [§ 2°7 witness has religious convictions and a belief in punishment after death, as bearing upon the question whether he is lilcely to appreciate the solemn obligation of an oath ; for the legal oath as administered according to forms generally in use in- volves an appeal to a Supreme Being. However, the object of the courts in requiring the administration of an oath to wit- nesses is to secure so far as practicable the speaking of the truth, and the oath may be varied so as to impose upon the witness in the manner most effectual as to him the obligation to speak the truth. Religious toleration is also the rule in all states, and involves as it is sometimes expressed the right to worship God according to the dictates of one's own conscience. But as a civil right, religious freedom is broader than this and involves freedom from compulsion with reference to any religious observances. The establishment of any religion by the state is inconsistent with religious liberty, for it must necessarily result in sonje dis- crimination against or compulsion upon persons who con- scientiously adhere to some other form of religion or are not believers in any religion. The union of church and state in any form or for any purpose is inconsistent with our constitu- tional theory of government. It is widely recognized in the United States as beyond the proper functions of civil govern- ment to concern itself with the religious beliefs of its subjects, so far as such beliefs do not lead to actions inconsistent with the public health, public morals, or general welfare of the people. In other words, government concerns itself with acts rather than with beliefs or motives. Complete religious liberty does not, however, necessitate an ignoring in public affairs of the fact that men in general enter- tain religious beliefs and that the Christian religion is the pre- dominating form of religious belief among the people of the United States. Forms of religious observances in accordance with the accepted doctrines of Christianity are generally recog- nized or acquiesced in by public authorities. Thus, it is cus- tomary in the houses of Congress, and in many if not all of the legislative bodies in the states, to have the proceedings opened § 2o8] Toleration. — Support. 297 with public prayer offered in accordance with the general beliefs entertained by Christian denominations, although it is not usual to give any preference or exclusive privilege to the forms practised by one denomination over those of others. It is cus- tomary also for the president of the United States and the governors of the various states by public proclamation to set apart a special day in each year for thanksgiving ; and special occasions for thanksgiving are sometimes indicated in the same way. Chaplains are appointed and paid by the federal govern- ment to perform religious offices in the array and navy and by state governments in the various state institutions. By law ministers of the gospel and other religious teachers are some- times exempt from jury service and prohibited from testifying as to communications made to them in their religious capacity. These various provisions are not in the nature of the establish- ment of religion, or any form of religion, but rather in recog- nition of the fact that by general custom religion is considered not inimical to but rather promotive of the public welfare. 208. Taxation for the Support of Religion. Complete religious liberty is not, however, secured by ex- emption from religious tests as a qualification for voting and holding office, nor by guaranteeing toleration and freedom from restraint as to religious beliefs. Any exaction of support for religious organizations or observances by way of taxation would also be an interference with religious liberty. The same causes which forbid restraint or compulsion of the person with regard to religion would also forbid compulsory contribution of property for its support, and the various state constitutions generally con- tain some prohibition of this character. Such a prohibition not only prevents the establishment of a state church to be sup- ported by taxation, but also precludes the support by public taxation of educational institutions devoted to the promulgation of any particular form of religion. The controversies which have actually arisen in the courts as to religious liberty have related for the most part to the use of public money in aiding the schools under the control of some 298 Religious Liberty. [§ 208 particular religious sect or the introduction into schools sup- ported by public taxation of some form of religious worship or instruction. (See Pfeiffer v. Board of Education and State w. District Board.) No satisfactory rule can be derived from the decisions of the courts with reference to these questions, for the reason that they have been made in applying the particular provisions of the different state constitutions, which are by no means uniform in their requirements ; but this, perhaps, may safely be said, that tlie reading without comment of portions of the bible in the public schools is not an interference with religious liberty, provided attendance at such exercise is not made compulsory on the part of the scholars who desire to be excused, or whose parents desire to have them excused, on account of conscientious scruples. With regard to the use of public money in aiding sectarian schools a similar principle must be applied, and if attendance in the school is permitted only to those entertaining some particular form of religious belief, or if the school gives some form of religious instruction, or if it imposes any conditions which exclude pupils on account of religious belief or want of belief, it cannot properly be given appropriations or support from the funds raised by public taxation. Similar questions have been made as to the constitutionality of exemptions from taxation of property devoted to religious purposes. It might reasonably be argued that to exempt property devoted to sectarian purposes from taxation is in effect to promote such purposes at the public expense, but it may be said, on the other hand, that such property is devoted to a benevolent purpose and a purpose which the state may legiti- mately encourage in the same way that property devoted to the use and support of private educational institutions, libraries, charitable societies, and other like objects is devoted to a use beneficial to the public, and may be exempted from taxation on the same general grounds. The amount of taxation of which the state is deprived by the exemption of property devoted to religious purposes is so small as compared with the total amount realized from general taxation, that the increase § 209] Sunday Laws. 299 of burden thus thrown on other property owners may reasonably be disregarded. Moreover, the exemption of such property is not directly but only indirectly and remotely the imposition of any pecuniary burden, and such exemptions are generally sustained as proper when authorized by law. 209. Sunday LaTva ; Blasphemy, etc. In the promotion of the general public welfare, the law- making power may properly take into account the fact that the great majority of the people recognize as desirable the setting apart of the first day of the week as a day on which ordinary business shall be suspended in order that they may have opportunity for undisturbed religious assemblies and exer- cises if they see fit ; and it is regarded as proper and constitu- tional to prohibit the transaction of business or the performance of labor on such day, save as may be necessary to the public welfare or promotive of charity or religion. Such statutory pro- visions are supported, not as intended directly to compel or promote religious observances, but rather as securing the general tranquillity and welfare of the people. Perhaps a Sunday law could be sustained on the theory that it is conducive to the general health and prosperity of the people that they have an opportunity to devote one day in seven to rest from their regular callings. Without inquiring very particularly into the grounds on which Sunday laws have been sustained it is sufficient to say that they have been generally held to be constitutional, even as to persons whose conscientious belief requires them to set apart some other day of the week for religious purposes ; but it is not unusual to exempt from the provisions of the law those who conscientiously observe some other day. Laws for the punishment of profane swearing and blasphemy are also sustained, as calculated to prevent conduct shocking and obnoxious to the general sentiments of the people and pro- ductive of disturbance and disorder. Punishment for such offences is not imposed on account of the moral wrong done, but on account of the injury to others which results. Disturbance of religious worship is generally punishable, but 300 Religious Liberty. [§210 this is rather for the preservation of the public peace and pro- tection of the people in the exercise of religious liberty than as a recognition of religion in any form. In this instance, as in others, the government in making and enforcing the laws has regard to the general peace and welfare rather than to the pro- tection of religion. 210. Religloua Belief no Defence for Violating Law. When in the exercise of its legitimate authority and for pur- poses recognized as proper to be considered and promoted, the legislative power has prohibited any act or line of conduct, the conscientious belief that such prohibition is wrong and that the act or conduct prohibited is required as a religious duty will not be an excuse or defence for a violation of the law. Re- ligious liberty does not include or involve the right or duty to violate the law. It is not necessary here to enter into any phil- osophical discussion as to possible conflicts between the law of the land and any assumed, natural, moral, or higher law. Fot the purposes of government, its authority exercised within its recognized sphere must be paramount to any other authority. Therefore, conscientious belief that war is wrong or immoral or contrary to divine law will not justify a refusal to pay taxes for the raising of funds to be used in military operations ; and the persons thus refusing to contribute to the support of the govern- ment in the exercise of one of its recognized functions can properly be subjected to whatever penalty or punishment is provided in such cases. Likewise, compulsory military service may be required of such persons. But in the full recognition of religious liberty it may be provided that persons who have a conscientious objection to war may be excused from military service on payment of some pecuniary equivalent. As a further illustration of the principle that religious belief is no excuse for violation of law it has been held that persons entertaining the belief recognized by one branch of the Mormon church that polygamy is morally right and commendable, may without inter- ference with their religious belief be required to abstain from polygamous marriages on penalty of criminal punishment {Rey- nolds V. United States). CHAPTER XXXVIII. FREEDOM OF SPEECH AND THE PRESS. 211. References. J. Story, Constitution, §§ 1880-1S92 ; T. M. Cooley, Constitutional Limi- tations, ch. xii ; J. R. Tucker, Constitution, 669, 670 ; T. M. Cooley, Con- stitutional Law, ch. xiv, § 5 ; H. C. Black, Constitutional Law, §§ 235-242 ; T. M. Cooley, Torts, ch. vii ; E. A. Jaggard, Torts, ch. viii ; M. L. Newell, Slander Sf Libel ; W. Blackstone, Commentaries, III, 123-126, IV, 150- 153; Ex parte /ackson(i?:T],^6\J.S.y2y) ; /« «^a/z>/- (1892, 143 U. S. no; McClain's Cases, 478 ; Thayer's Cases, 732). 212. Constitutional Provisions as to Expression of Opinion. The state constitutions usually contain guaranties of freedom of speech and the press similar to those found in the federal constitution, that " Congress shall make no law . . . abridging the freedom of speech and of the press " (Amend. I). But it is not intended by such prohibitions to guarantee the right, without restraint or liability, to utter or publish matter which may be injurious to individuals or detrimental to public peace and tranquillity. By the common law of England, which has been fully recognized in this respect in the various states, libel, that is, the publication of defamatory matter by printing or writ- ing, is punishable criminally ; and injurious utterances, whether in writing or in print or by spoken word, have also been recog- nized as a ground of action for the recovery of damages by the person thereby injured. The object of the constitutional guaranties as to freedom of speech and the press seems to be to prevent the exercise of the power of the government in the regulation beforehand of what shall be published and the suppression of publications on ac- count of their supposed injurious consequences. In European countries supervision over publication is exercised to some extent 301 302 Free Speech and Press. [§ 213 by public officials charged with determining what is likely to be injurious to the government or the people, and the power is also exercised of suppressing newspapers and books which are deemed to be harmful to tranquillity or good morals. Similar powers had been exercised by the government of England prior to the independence of the colonies, and had been the subject of much discussion and discontent ; and the effect of the constitutional guaranties is rather to deny to the government any such power of supervision than to relieve persons from civil or criminal liability for wrongful and injurious publication. In other words, under our constitutional system freedom of speech and of the press is, like any other civil right, subject to regulation by law in the exercise of the general police power, and may be enjoyed only so far as it is not thus prohibited, and each person exercises this freedom subject to the same general restrictions which are by law imposed upon the exercise of freedom in any other respect. It will therefore be necessary to notice some of the general restrictions which are imposed by law in order to understand the extent and nature of freedom of speech and the press. These restrictions are found in the statutory or common-law rules relating to slander and libel. 213. Slander and Libel. One may do injury to another in his property rights, in his feehngs, and in his reputation, by making to others false and defamatory statements about him. Such statements made by word of mouth, and not in writing, in print, by caricature, or in some other tangible form, are denominated slander ; and the person injured is entitled to maintain an action against the wrong-doer to recover damages for the injuries suffered. There is in general no criminal punishment for slander; but spoken words may be criminally punishable on other grounds, as amounting to blasphemy, or being obscene, or calculated to dis- turb the public peace, and the like ; that is, in general, spoken words are not the subject of criminal punishment on account of injuries to individuals, but only on account of some harm to the public. In a civil action for slander the truth of the words § zi4j Libels. 303 spoken is a defence, for the injured party is not to be heard to say that he has been damaged by the speaking of the truth concerning him. Even where the words are untrue they may have been spoken without malice and upon a proper occasion, so as not to constitute an actionable wrong. In a general sense libel may be said to be publication by written or printed language or caricature, or some tangible method of conveying thought or information of matter which is defamatory and injurious in its character. Such matter may be considered with reference to its injurious effect upon the govern- ment, its tendency to disturb the public peace or impair the public morals, its tendency to injure the individuals directly concerned, thus impairing the security of property and reputation, and its actual injurious consequences as affecting the particular indi- viduals injured such as to entitle them to recover damages. In some of these respects libel constitutes a drime ; in others it forms a basis for the recovery of damages in a civil action. 214. Libels on Government and Injurious Publications. In England publications tending to bring the government into contempt, or to impair its authority, were at one time pun- ishable criminally ; but the theory of our system of government is that it exists only for the benefit of the people, and therefore that it is unwise to restrain full discussion and criticism of its acts and policies. Therefore, prosecutions for libels on the government, whether state or federal, are practically unknown. Defamatory statements as to the acts or conduct of a public official might be such as to be punishable criminally, or to form a basis for an action for civil damages sustained by him as an individual ; but neither criminally nor civilly could the persons responsible for the defamatory publication be called to account for the wrong as a specific injury to the government itself. Censorship of the press by the government in its own interests and for its own protection is not regarded as a proper exer- cise of authority, either with reference to publications threat- ened or anticipated, or as to those actually made. This liberty of persons in respect to the government may be sometimes 304 . Free Speech and Press. [§215 exercised for improper purposes and with injurious conse- quences; but the general public good is on the whole pro- moted by this absolute freedom of discussion, and the resulting advantages are deemed to outweigh any possible injurious consequences. The publication of defamatory matter may, however, be productive of disturbance and disorder, and in that sense may be a public wrong punishable as a crime. In this form of libel the injury sought to be avoided is that to the public peace and tranquilhty. For the protection of the public morals it may be made criminal to publish obscene or scandalous matters ; and for similar reason the federal government prohibits the sending of obscene publications through the mails. The public morals as well as the public health are regarded as proper subjects for legislation in the promotion of the general welfare of the people. ' 215. Defamation of Individuals. The security of individuals against defamation calculated to injure them in their property rights, or in their feelings or their reputation, is a proper matter for consideration by the law ; and it is therefore generally regarded as criminal to publish any matter calculated to bring individuals into contempt, or subject them to ridicule, or to destroy their good reputation. Such a wrong is regarded as a public injury in the same sense as wrong- ful appropriation or destruction of the property of individuals ; and while the individual concerned may be alone directly dam- aged, it is for the protection of the public in general against similar injuries that such acts are treated as crimes. Moreover, the publication with reference to individuals of defamatory mat- ter is calculated to cause disorder and is in that sense a public wrong. It is evident that the publication of defamatory matter may be objectionable from the point of view of the public tranquillity and security, although it is in fact true ; and therefore in prose- cutions for libel as a crime, the truth of the defamatory matter published is not necessarily any defence. But there may well § 2i6] Defamation of Individuals. 305 be just occasion for publishing defamatory matter which is true, as, where it relates to the conduct of a public officer or the character of one who is a candidate for office ; and it is usually provided in state constitutions in some form of language that in criminal prosecutions for libel the truth of the defama- tory matter may be shown and will constitute a defence if it appears that the publication was with good motives and for justifiable ends. In many state constitutions it is also provided that in criminal prosecutions for libel, the jury shall be judges of the law as well as of the facts. This modification of the ordinary rule as to jury trials, that the court determines questions of law and leaves only the facts to be determined by the jury, is due to a peculiarity of the English law, in accordance with which judges were in the habit of instructing juries that the fact of publica- tion of the alleged defamatory matter was alone to be deter- mined, it being for the court to say whether the publication was in fact defamatory, or whether it was privileged. There seems to be no substantial difference, however, under such a constitu- tional provision, between a prosecution for libel and a prosecu- tion for any other crime ; the judge directs the jury as to the law, and the jury determines whether the facts are such as to consti- tute a crime as defined by the court. A person may be directly damaged in his property rights or in his feelings or reputation by defamatory publications made concerning him ; and for such damage he is entitled to recover compensation in a civil action brought against the person wrongfully causing injury to him. In such action the truth of the defamatory matter may be shown by way of defence, for here, as in the case of slander referred to in a preceding section, the policy of the law is not to recognize as a civil injury the detriment suffered from the publication of the truth. 216. Privileged Publications. It, has been said in the preceding section that in a criminal prosecution for libel the defendant may show the truth as a defence if the publication was with good motives and for justifi- 306 Free Speech and Press. [§216 able ends. Such a publication is said to be privileged ; and the ends which will justify publishing defamatory matter which is true are various. Not only is it justifiable in the public interest to publish the truth as to the conduct of public officers, and as to the character of those who are candidates for office so far as their character is a subject for proper consideration in determining their fitness for the office ; but in general the truth may be published although injurious to individuals if it in any way concerns matters of proper public interest. For a better understanding of the reasons which underlie the doctrines of privilege, not only as relating to criminal prosecu- tions, but also as affecting liability in civil suits for damages, it will be convenient to divide cases of privilege into those which are absolute and those which are qualified. There are some subjects as to which it is necessary to make statements in writ- ing or print, which are of such nature that the public interest requires that no one shall be held accountable for them unless they are maliciously made for the purpose of causing injury. Thus, the attorneys for the parties in judicial proceedings are required to set forth the facts which they rely upon as constitu- ting the cause of action or the defence ; and the proper admin- istration of justice renders it essential that they be allowed to do so without danger of being called to account for the untruth of the statements made. The truth of the statements is to be determined by the court as affecting the rights of the parties in the proceeding. Therefore, the written pleadings as well as the records made by judicial officers in a case in co\irt are publications which are absolutely privileged, and no prosecu- tion or civil suit can be predicated on statements thus made, unless, perhaps, where it can be shown that they were not made in good faith for the purposes of the case, but were maliciously and wantonly made with the object of doing injury to others. For like reasons the publication in newspapers of the actual proceedings in a court is privileged, for such proceedings are public in their nature. Members of a legislative body should be at liberty to discuss fully any question properly coming be- fore such body for discussion ; no member can be called to § zi6] Privileged Publications. 307 account otherwise than by the body itself for what is said or published by him in the discharge of his office ; and a news- paper publication of the proceedings of such bodies is likewise absolutely privileged. Freedom of the press involves also a full discussion of mat- ters of public concern. One who expresses his views as to such matters on a proper occasion and in a proper way, with good motives, should not be held accountable in a criminal or a civil proceeding, although other persons may be injuriously affected. TIuis it is lawful to discuss the conduct of public officers and the character of candidates for office, to comment on judicial proceedings, to criticise books and pictures, to pub- lish the news in the ordinary course of business, and otherwise to attempt to enlighten the public as to the affairs in which they have an interest. With reference to these matters, which are subject to qualified privilege, the requirements are that the publication be in good faith and not for the purpose of mali- ciously injuring others, and also so far as the publication pur- ports to state facts, that it be true ; for while good motives and justifiable ends will relieve from liability for the pubhcation of matter which is truthful, they will not relieve from liability for injury actually inflicted by the publication of matter which is untrue, even though there be reasonable grounds to believe it to be true. The reasonable belief as to the truth of the matter may relieve from liability for what are called punitive or vindic- tive damages in a suit, but not for actual damage done. There are occasions, however, when it may be justifiable or even obligatory to give information not in the public interest, but in private interests ; and here there is no liability if the statements are made in good faith and with reasonable ground to believe that they are true. Thus an agent who is under obligation to communicate to his principal what he believes to be facts as affecting such person's interests, cannot be held accountable to third persons for statements made, even though they are false, if reasonably believed to be true, and such as it was proper to make. Likewise in the family relations, com- munications between husband and wife or parent and child 308 Free Speech and Press. [§216 cannot be complained of by others if, when made, they were believed to be true, and such as it was proper under the cir- cumstances to make. It is not purposed here to discuss in full the law of libel, but only the extent to which the constitu- tional guaranties of freedom of speech and of the press have been applied as affecting criminal and civil liability. It may be added that the federal statutes prohibiting the sending of obscene matter, lottery advertisements, etc., through the mails are not an infringement of freedom of the press {^Ex parte J'ackson and In re Rapier') but are properly within the power given as to post-offices and post-roads. (See above, § 104.) CHAPTER XXXIX. RIGHTS OF ASSEMBLY AND PETITION. 217. References. J. Story, Constitution, §§ 1893-1895; T. M. Cooley, Constitutional Limitations, *349; J. R. Tucker, Constitution, 671; F. Lieber, Civil Liberty and Self-GoT/ernment, ch. xii ; T. M. Cooley, Constitutional Law, ch. xiv, § 3 ; H. C. Black, Constitutional Law, § 243 ; United States v. Cruikshank (1875, 92 U. S. 542; McClain's Cases, 31). 218. Peaceable Assembly. It may be true that the prohibition in the federal constitution as to abridgment of "the right of the people peaceably to assemble and to petition the government for redress of griev- ances " (Amend. I), and similar prohibitions in the state con- stitutions, primarily had reference to assemblies for political purposes. Nevertheless, the right guaranteed is not to be re- garded as a mere political privilege, but one just as fundamental as that of freedwTi of speech and the press, or freedom of con- tracting, or any other phase of liberty recognized by our constitutional system. Assemblies may be held, not only for political purposes, but also for religious, social, and business purposes ; and regardless of the object, if it be lawful, and the method, if it be timely and orderly, the exercise of the right is to be recognized and protected. The government may prop- erly, in the preservation of peace and order, suppress or dis- perse assemblies made for an unlawful purpose or cause, or which by reason of the time, place, or manner, are illegal, dangerous, or turbulent. No doubt the right to assemble for political purposes in connection with the selection of presi- dential electors or congressmen, or for the purpose of petition- ing the federal government, is a privilege of United States citizenship, but the general right to assemble for lawful pur- 309 3IO Assembly and Petition. [§ 219 poses, and in proper and orderly places and manner, is a civil right, to be protected like other civil rights by the states. It is not granted by constitutions, but by them is recognized and protected. 219. Right to Petition. So far as the clause of the federal constitution, last above quoted, relates to the right of petition, it evidently contemplates a petition by many persons addressed to some public officer or body. Petitioning may be a political privilege or a privilege of citi- zenship, but it is broader than that in its scope and was undoubt- edly intended as one of the guaranteed civil rights. Those subject to law ought to have the opportunity, if they desire, to avail themselves of this right, in order to urge upon legislative bodies reformations or changes in the law, and upon the execu- tive department the administration of the law in such a way as to protect personal and property rights. However, as no method of presenting or securing the consideration of such petitions is provided for, the duty to receive and consider is to be discharged in the exercise of discretion on the part of the legislative body or executive officer, and the right to petition will not justify violence or disorder or interference with the proceedings of any duly constituted body or authority. CHAPTER XL. RIGHT TO BEAR ARMS; QUARTERING OF SOLDIERS. 220. References. J. Story, Constitution, §§ 1896-1900; T. M. Cooley, Constitutional Limitations, * 350! J. R. Tucker, Constitution, 671, 672 ; J. N. Pomeroy, Constitutional Lav), §§ 239, 240 ; F. Lieber, Civil Liberty and Self-Govern- ment, ch. xi ; T. M. Cooley, Constitutiotial Law, ch. xiii, § 2, and ch. xiv, § 4 ; H. C. Black, Constitutional Law, §§ 203, 218; Ex parte Cruikshank (1875, 92 U. S. S42 ; McClain's Cases, 31). 221. Keeping and Bearing Arms. The provision of the federal constitution that " A well-regu- lated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be in- fringed " (Amend. II), and like provisions in state constitu- tions are evidently intended to guarantee the right of the people to form military organizations under lawful authority for a proper purpose. TJie federal guaranty would prevent any attempt on the part of Congress to render illegal the organi- zation and disciphne of a state militia, but such interference would be unconstitutional without this guaranty, for (see above, § no) the right of the state to maintain an organized militia is elsewhere recognized. As an exercise of a civil right, the formation of military companies or bodies must depend for its lawfulness upon the state constitution and laws, and must be exercised in accordance with the law. Therefore, the state may prohibit the gathering of armed men for an unlawful purpose or in a manner likely to result in violation of law or in disorder and riot. The state may also prohibit the carrying of arms by private individuals as an act imperilling the public peace and safety. 311 3 I 2 Arms and Quarters. [§ ^^^ In many states there are statutes making it a crime to carry concealed weapons, and such statutes are not regarded as unconstitutional. 222. The Quartering of Troops. One of the grievances of the colonies as indicated in the Declaration of Independence was that the English government kept among tlie people in times of peace standing armies with- out the consent of their legislative bodies, and quartered upon them and required them to maintain bodies of armed troops ; and the policy indicated by the federal and state constitutions is that standing armies for the purpose of maintaining internal peace and the enforcement of law should be avoided. Accord- ingly, the organization of the militia in the states is provided for, and the federal government is authorized to call out the state militia for the protection of the United States government and the enforcement of its laws (see above, § in). Neverthe- less, the United States government' is authorized to maintain standing armies and to use the regular troops whenever the employment of military force is justified. The prohibition against the quartering of troops referred to in the federal constitution (Amend. II) and in the state constitutions, is intended to prevent, in time of peace, the imposition of the support of soldiers on private persons or of their maintenance by such persons in time of war, and also to prevent the in- trusion of soldiers upon the private premises of individuals. The common-law notion that every man's house is his castle and that he shall not be compelled to allow any person to come upon his premises except with his consent, save the officers of the law in the execution of their regular duties, is undoubtedly recognized by such constitutional provision. CHAPTER XLI. SEARCHES AND SEIZURES. 223. References. Joseph Story, Constitution, §§ 1901, 1902; T. M. Cooley, Constitutional Limitations, * 299-308 ; J. R. Tucker, Constitution, 672 ; F. Lieber, Civil Liberty and Self-Government, ch. vi ; J. N. Pomeroy, Constitutional Law, § 241 ; T. M. Cooley, Constitutional Law, ch. xiii, § 2 ; H. C. Black, Con- stitiitiottal Law, §§ 216, 217 ; Boyd v. United States ( i886, 1 16 U. S. 616 ; McClain's Cases, 885). 224. Search and Seizure ■without Warrant. The fundamental principles of civil liberty and the enjoyment of property forbid that one's person or premises be searched or that his person or property be seized without lawful authority ; and without any express constitutional guaranty, immunity from such unlawful acts would be fully recognized. But the people of England and of the colonies had experienced un- justifiable invasion of this right by means of searches and seizures not authorized by law and in the exercise of a tyrannical authority, and it was natural that express guaranties against such tyrannical acts should be inserted in the state constitutions and in the federal constitution. The provision of the latter is as follows: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue, but upon proper cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized " (Amend. IV). The notion that every man's house is his castle, to be invaded without his consent only under lawful authority, which has been already referred to in the preceding chapter, is further recognized here. There may be proper occasion for the invasion of private premises in the 3'3 314 Searches and Seizures. [§ 225 execution of the law, but the guaranty is as against such acts by public authority without the sanction of law. Such invasion on the part of public officers may be lawful without warrant or other process for the purpose of arresting a criminal or in the protection of the public health or safety, but the ofi&cer thus acting on his own responsibility and judgment is subject to the risk of being held accountable for trespass if in the judgment of the court the circumstances did not justify his action. He cannot safely proceed upon mere suspicion or upon his own whim or caprice. Subject to the same liability a private person may sometimes be justified in breaking into private premises to prevent a crime or arrest a criminal. The sanctity of the person and the dwelling, which the common law fully recognizes, extends also to private books, correspondence, and other things in which the public has no legitimate concern, 225. Search Warrants. Regular proceedings are recognized in all the states in pur- suance of which the officers of the law may be authorized by a warrant duly issued, to enter private premises and search for property or the evidence of crime, but a search warrant will be issued only after some form of proof to a magistrate or other judicial officer that there is just occasion for such search and seizure ; and the proofs and warrant issued in pursuance of it, must indicate the object of the search, which must be an object recognized by law, and the premises to be searched must be described with some particularity. A warrant not thus describ- ing the premises to be searched, and the object, is called a general warrant, and under our system of government is un- authorized. The officers of the law may also be authorized by warrant for the arrest of a person designated therein to enter private premises for the purpose of making such arrest, and in making an arrest for the commission of a crime they may seize property procured by means of the crime charged, or weapons which have been used in the commission of the crime, or which tend to furnish evidence of its commission. CHAPTER XLII. GUARANTIES AS TO PROSECUTIONS FOR CRIME. 226. References. J. Story, Constitution, §§ 1778-1794; T. M. Cooley, Constitutional Limi- tations, ** 309-348; J. N. Pomeroy, Constitutional Law, §§ 242-244; F. Lieber, Civil Liberty and Self-Government, chs. xix, xx, and app. iii ; T. M. Cooley, Constitutional Law, ch. xv, §§ 3-6; H. C. Black, Constitu- tional Law, ch. XX ; J. C. Hurd, Habeas Corpus ; W. Blackstone, Commenta- ries, III, 134-138 ; Hurtado v. People of California (1884, no U. S. 516 ; Thayer's Cases, 6i6; McClain's Cases, 905); Mackin v. United States, (1885, 117 U. S. 417, McClain's Cases, 985); Kring v. Missouri (1882, 107 U. S. 221 ; McClain's Cases, 983; Thayer's Cases, 1458) ; Brown v. Walker (1896, 161 U. S. 591 ; McClain's Cases, 990) ; Mattox v. United Stdtes (1895, 156 U. S. 237 ; McClain's Cases, 995) ; In re Kemmler (\?><^, 136 U. S. 436) ; TarbWs Case (1871, 13 Wallace, 397; McClain's Cases, 43; Thayer's Cases, 2299) ; Iti re Neagle (1889, 135 U. S. i ; McClain's Cases, 65 ; Thayer's Cases, 335) ; Whitten v. Tomlinson (1895, '^o U. S. 231; McClain's Cases, 777); Ex parte Milligan (1867, 4 Wallace, 2; Thayer's Cases, 2376) ; Ex parte Merryman ( i86i, Taney's Reports, 246 ; Thayer's Cases, 2361, and note, 2374); Hallinger v. Davis (1892, 146 U. S. 314 ; McClain's Cases, 987 ) ; Harris v. People (1889, 128 111. 585 ; McClain's Cases, 989). 227. General Guaranties as to Prosecutions. Restrictions on the state and federal government in the exercise of the power to define and provide for the punish- ment of crime have already been briefly discussed (see above, ch. x) and it has been suggested that on this subject there are certain specific limitations in the federal constitution on the power of states as well as on the power of the federal government. Indeed those provisions in the federal constitu- tion are generally included in the state constitutions, so that the whole subject may be discussed with reference to the provisions of the federal constitution, bearing in mind, however, the rule of construction that general limitations in the federal constitu- 315 3i6 Prosecutions for Crime. [§ 228 tion apply only to the federal government, and that limitations intended as restrictions on state power make specific reference to the states. 228. Due Process of Law. The most important general limitation in both state and federal constitutions, applicable in criminal prosecutions as well as in civil suits, is the guaranty found in Amendment V, and in similar provisions in state constitutions, against " depriving any person of life, liberty, or property without due process of law." This restriction is specifically imposed on the states in Amendment XIV (see below, ch. xliv). It is difficult to describe in a very definite way the essentials of due process of law in criminal cases. It was no doubt intended by the use of this language to preserve the common-law methods of pro- cedure for the punishment of crimes, which involve usually some form of accusation on oath before a magistrate ; the issuance by such magistrate of a warrant for the arrest of the accused ; a preliminary investigation by the magistrate to de- termine whether the accused shall be held under bail or other- wise to appear before the grand jury ; the hearing of evidence by the grand jury to determine whether there is such reasonable ground to believe the accused to be guilty as to justify the finding of an indictment against him ; trial by jury on the charge made in the indictment ; sentence by the court to a specified punishment on a verdict of guilty ; and execution of the sentence imposed by the court. These are the usual steps as to crimes of a graver nature designated as felonies ; but the preliminary proceedings with relation to the issuance of a warrant of arrest are not regarded as essential steps and may be omitted, for the charge can be made directly to the grand jury, or the grand jury can investi- gate on its own motion, and a warrant of arrest can be issued in the first instance by the court to which the indictment is returned. The essential steps, therefore, as to felonies are, so far as the protection of the rights of the accused may be concerned, indictment by grand jury, trial by iury, and sen- § 229] Presentment by Indictment. 3 1 7 tence on verdict of guilty. But in case of crimes involving a lesser degree of criminality, accusation by information may be substituted for indictment by grand jury, and indeed some petty crimes can be punished on trial before a magistrate with- out a jury. Therefore, it cannot be said that in all criminal cases indictment and jury trial are essential to due process of law. It may, however, safely be stated that the accused in any criminal proceeding is entitled to know what acts are charged as constituting the crime for which he is put on trial and to an investigation of these facts on evidence received in a judicial tribunal governed by the rules of evidence generally recognized by courts, and to be convicted only when the evidence estab- lishes his guilt beyond a reasonable doubt. These, therefore, are the essential features of due process of law in criminal prosecutions. Certain specific restrictions with reference to each of these steps in the procedure must now be separately considered. 229. Presentment by Indictment. The first guaranty in Amendment V to the federal constitu- tion is, " No person shall be held to answer for a capital or otherwise infamous crime unless on presentment or indictment of a grand jury, except in cases arising in the land or naval forces or in the militia when in actual service in time of war or public danger." A distinction is here recognized between " presentment " and " indictment " which is of no practical value. Either must be the result of action by a grand jury. A presentment is made by a grand jury on its own motion, based on an investigation had at the instance of the members themselves and not upon charges submitted by a prosecuting officer, while an indictment is drawn by a prosecuting officer and approved by the grand jury after hearing the evidence tending to show that the person charged is guilty of the crime named and described in the indictment ; but the effect in each case is the same and the distinction need not be further referred to. 3i8 Prosecutions for Crime. [§ 230 The grand jury at common law is a body of persons qualified to act in that capacity and selected in accordance with some established procedure and sworn to discharge fairly and im- partially the duty of investigating crimes of which they have knowledge or which are brought to their attention in proper form, and to return indictments against those whom they have reasonable ground to believe to be guilty of such crimes. At common law a grand jury may consist of not more than twenty- three qualified persons, twelve of whom must concur in finding an indictment. In every case, therefore, in which indictment is required it is meant, unless otherwise provided, that such an indictment must have been concurred in by twelve grand jurors. In states having constitutional provisions in this respect similar to that found in Amendment V, the same rule is ap- plicable ; but by express constitutional provision a grand jury of less than twelve may be authorized, for there is no restriction in the federal constitution on the act of states in this respect. Indeed it is now provided in some state constitutions that the accused may be put on trial without indictment, some other form of accusation being substituted, and this is no violation of the provisions of the federal constitution. In other words, indictment by grand jury is not essential to due process of law, and is not required in the state courts unless either expressly or by imphcation the state constitution so provides (^Hurtado v. California) . 230. Capital or othervrise Infamous Crimes. In states where by constitutional provision indictment is still essential, it is usually required in cases of treason and felony ; but Amendment V uses somewhat different language and speci- fies the crimes triable only on indictment in the federal courts as those which are capital or otherwise infamous. Capital crimes are those for which punishment by death may be im- posed ; and infamous crimes are those subjecting the guilty person to an infamous punishment. The infamy which is re- ferred to in this description is infamy in the punishment which may be imposed, and not infamy in the nature of the crime it- § 23z] Twice in Jeopardy 319 self. An infamous punishment not capital is punishment by imprisonment in a penitentiary, as distinct from imprisonment in a county jail {Mackin v. United States). Crimes which are not capital or otherwise infamous may be prosecuted in the federal court on indictment, but in such cases indictment is not essential under the constitutional provision. There must, however, be some recognized form of accusation, and the usual form in such cases is called an information, which is a complaint made under oath and presented by the prosecuting officer to the court, charging the crime in substan- tially the same manner which is usual in an indictment. 231. Courts-Martial. The exception found in Amendment V, with reference to cases arising in the land and naval forces or in the militia, applies to proceedings in courts-martial for violation of the mihtary law. (See above, § 114.) Such courts proceed in accordance with the provisions made by Congress under the authority to estab- lish rules for the government and regulation of the land and naval forces and for governing such part of the militia as may be employed in the Services of the United States (Const. Art. I, § 8, HIT 14, 16). The ordinary constitutional limitations are not applicable to such courts. 232. Twice in Jeopardy. The clause found in Amendment V of the federal constitution and in the constitutions of the various states, that no person shall be subject for the same offence to be twice put in jeopardy of life or limb, is merely a partial statement of a common-law prin- ciple that no one shall be twice tried for the same ofTence. As found in the federal constitution the clause is of extremely limited application, and strictly interpreted relates only to crimes which may be punished by death, for maiming as a form of pun- ishment has never been recognized in this country. But simi- lar provisions in the state constitutions go to the full extent of prohibiting a second trial for an offence for which the same person has previously been put on trial. 320 Prosecutions for Crime. [§ 233 The usual application of this rule is in cases where the ac- cused has been acquitted by a jury ; and such acquittal is con- clusive, not only as to the crime charged, but as to any other crime involving the same acts which were depended upon or sought to be estabUshed in the first trial for the purpose of se- curing a conviction. No matter how unwarrantable under the evidence may be the action of the jury, and no matter how erroneous may have been the procedure in the court, the ver- dict of the jury acquitting the accused is final. But if the ac- cused is convicted and the conviction is set aside for some error of the court or misconduct of the jury, the accused who has procured the hostile verdict to be thus set aside may be again put on trial, although, as held by some courts, he cannot be again tried for any higher crime or higher degree of crime charged than that for which he was convicted, the conviction of the lesser crime or lower degree being deemed an acquittal of any higher crime or higher degree of crime (^Kring v. Missouri). The constitutional provision also prevents a second trial for a crime which involves any criminal act for which the accused has been convicted on a previous trial. It is not practicable to discuss in full the doctrine of second jeopardy as applied to cases where a prosecution has been duly commenced, and for some reason has never proceeded to the verdict of a jury. It is sufficient to say that if the defendant by escaping from custody or otherwise has prevented the trial of the case, or if by reason of sickness of the judge or inability of the jury to agree no verdict has been reached, the accused may be again put on trial. 233. Self-Crimination. The provision in Amendment V that no person shall be com- pelled in any criminal case to be a witness against himself, which is found also in many, though not all, of the state consti- tutions, is an announcement of a general rule of evidence long recognized in common-law courts as applicable in civil as well as criminal cases. The object of this rule of evidence is to protect the witness against being compelled in any judicial pro- § 233] Self-Crimination. 321 ceeding to disclose facts which would tend to subject him to a criminal prosecution. Under the civil-law system as adminis- tered in France and some other European countries, one who is put on trial for a crime is subjected to an inquiry into his whole life and conduct, without regard to its relevancy to the particular crime with which he is charged ; and in such coun- tries physical torture was formerly permitted for the purpose of securing confessions of guilt. But such proceedings were not recognized as justifiable by the common law as it prevailed in England at the time that the American colonies became inde- pendent, and are not permitted in any of the states of the Union. Some of the rules resulting from the recognition of the principle that a witness cannot be required to give self- criminating testimony are the following : Admissions of guilt made outside of court cannot be' proven against one accused of crime unless they are voluntarily made. The accused cannot be required to testify in a criminal case. In no case either civil or criminal can a witness be compelled to give testimony tending to show that he has been guilty of a crime, nor to pro- duce books and papers having such tendency. As to some crimes it is found so difficult to secure the evi- dence of persons not implicated that statutes have been passed in various states providing that as to certain classes of crimes persons implicated therein may be required to testify against others, with the provision that their testimony shall not after- wards be used against themselves in prosecutions for the same crime ; but to these statutes it has been objected that they sub- ject the witness to the ignominy of disclosing his criminal con- duct, and to the danger that after his connection with the crime has been discovered his guilt thereof may be proven by other evidence to which his enforced disclosure has furnished a clue ; and it is thought that such statutes do not adequately protect the person required to testify unless it is provided further that he shall not subsequently be held accountable in a criminal prosecution for any crime committed by him in any way con- nected with the transaction with reference to which he is com- pelled to testify {Brown v. Walker). 322 Prosecutions for Crime. [§ 23 S 234. Speedy and Public Trial. State constitutions usually contain a provision similar to that found in the federal constitution, that " In all criminal prosecu- tions the accused shall enjoy the right to a speedy and pubhc trial " (Amend. VI). But these provisions are rather directory than mandatory in character. One accused cannot insist on a trial otherwise than in accordance with the usual and recog- nized method of procedure in a court of justice, and it may result that even against his will the trial is postponed until his guilt can be properly investigated and the evidence against him secured. Statutory provision is usually made, however, for giv- ing preference to criminal over civil cases, so that the trial of criminal prosecutions may be had as soon as practicable, and it is not uncommon to provide that one accused of crime shall be released after the second term of court at which he might have been tried has passed without his case being reached, unless his own fault or request or some unusual emergency has brought about a further postponement. By public trial is meant a trial in open court and this is the usual method of procedure in all American judicial tribunals. The requirement of a public trial does not, however, pre- vent the exclusion from the court room of witnesses, for the purpose of preventing them from hearing the testimony given by other witnesses so as to be able to conform their own testi- mony to that of others whom they may be called upon to cor- roborate or controvert ; nor does it prevent the like exclusion of children, or even the general public who have no direct inter- est in the case, in prosecutions which are of such character that their presence might tend to the corruption of their morals or the morals of the community. 235. Trial by Jury ; Venue. It is further provided (Amend. VI) that the trial in criminal prosecutions is to be " by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law." This § Z3S] Trial by Jury. 323 is analogous to a rule of the common law formerly recognized in England requiring that in criminal prosecutions the jury shall consist of persons summoned from the vicinity where the crime was committed ; ^ but such a rule no longer prevails in the states, and it is usually left to be determined by statute in what county of the state a criminal trial shall be held. It is generally required that, save where a crime is continuous in its nature and has been partly committed in two or more counties, or has been commenced in one county and the final result accomplished in another, the trial must be in the county of the commission of the crime. It is no longer regarded as desirable or even expedient that persons familiar with the circumstances of the crime shall serve as jurors for the trial of the accused. But there is a paragraph in the federal constitution as first adopted requiring criminal trials in the federal courts to be by jury, in this language : " The trial of all crimes, except in cases of impeachment, shall be by jury ; and such trial shall be held in the state where the said crimes shall have been committed ; but when not committed within any state the trial shall be at such place or places as the Congress may by law have directed " (Art. Ill, § 2, H 3). As no federal district includes two states or parts of two states, this provision is complied with if the crime is tried by the proper federal court for the district in which the crime is committed ; and Congress has made direc- tion as to crimes against the United States not committed in any state (as, for instance, on the high seas) by providing that if the crime is committed outside the limits of any of the dis- tricts, the trial shall be had in the district in which the accused is arrested, or if arrested outside of any of the districts, then in 1 Reference is no doubt made to this rule of the common law in the complaint embodied in the Declaration of Independence that the king had deprived the colonists of the benefit of jury trial and transported them beyond the seas for trial for offences ; but it is more distinctly referred to in the "Declaration of Rights " adopted by the First Con- tinental Congress in 1774 in which this language is used: "The respec- tive colonies are entitled to the common law of England and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law." 324 Prosecutions for Crime. [§ 237 the district into which he is first brought after being arrested. The manifest purpose is to avoid the possibility that the prose- cuting officers shall select for the trial of one accused of crime some particular court or district in which they shall have a better chance of securing conviction than in some other, or that they shall unnecessarily inconvenience or oppress the accused by subjecting him to trial at a great distance from the place where the crime was committed, thus making it more difficult for him to secure the attendance of witnesses. 236. Right to be Informed of the Accusation. It is of the very essence of due process of law in criminal cases that the accused " be informed of the nature and cause of the accusation," as required by Amendment VI, and by similar provisions in state constitutions. If the crime is one triable only on indictment by a grand jury, the indictment must state in accurate legal terms the facts showing the accused to be guilty of the crime charged, and he can only be convicted on proof of the facts thus alleged. The purpose of the constitutional requirement is that the accused may have full opportunity to defend against the charge made, by introducing evidence tending to meet that introduced by the prosecution to establish his guilt on such charge. This opportunity would not be afforded him if he could be convicted on evidence tend- ing to show the commission of a different crime, or the same crime in a different manner than that stated in the indictment. In prosecution by information instead of indictment there must be the same definiteness in the information as is required in case of indictment. 237. Right to be Confronted with Witnesses. The requirement of Amendment VI that the accused in a criminal prosecution must be confronted with the witnesses against him is simply a statement of a rule of common-law pro- cedure in prosecutions for crime which is generally recognized in the constitutions of the states. The purpose of such require- § 237] Confronted with Witnesses. 325 ment is to enable the accused to subject the witnesses against him to the tests of credibility afforded by cross-examination and impeaching evidence, and to have the jury pass upon the weight of their testimony in view of such tests and their general con- duct and appearance while testifying. Experience has shown that these are valuable means for arriving at the truth. In civil cases testimony may be authorized to be taken by deposition to be read in evidence without the presence of the witness, the deposition having been given and sworn to before some officer authorized to administer oaths, but the constitutional provision that the accused in a criminal prosecution must be confronted by the witnesses against him prevents the testimony of witnesses for the prosecution being introduced by depositions. The accused may, if he sees fit, waive the constitutional requirement and permit testimony to be given by deposition, and he may introduce such testimony on his own behalf, if authorized by statutory provisions. It may result from this constitutional requirement that the prosecution will be unable to convict, if some essential fact in connection with the commission of the crime can only be proven by witnesses who are outside of the state, as the state cannot compel the attendance of witnesses from beyond its limits. There are at least two apparent exceptions to the rule requir- ing the defendant to be confronted by the witnesses against him, which are made by the courts in the practical administra- tion of justice, (i) In a prosecution for criminal homicide the dying declarations of the person killed with reference to the circumstances of the homicide and the connection of the accused therewith may be shown. The reason usually given for this exception is that one who believes himself to be about to die is as likely to tell the truth as though he were under oath and subjected to cross-examination, and the exception as to dying declarations is accordingly limited to statements made by the injured person under the sense of impending death which in fact follows soon after the statements are made. (2) Another apparent exception is found in the admission on a second trial of the testimony given against the accused on a former trial by 326 Prosecutions for Crime. [§ 238 a witness subsequently deceased ; that is, if the accused on one trial is confronted by a witness duly sworn and properly cross- examined, and by reason of the failure of the jury to agree or in case a verdict of guilty has been set aside and a new trial granted, the accused has again been put on trial under the same indictment and the witness testifying on the former trial is dead (or perhaps if he has gone beyond the reach of a sub- poena) those who heard his evidence on the former trial may testify what it was and thus make it available against the accused. In such case the accused has in fact once been confronted with the witness who has been required to testify under oath and been subjected to a cross-examination, and there is no good reason why the prosecution should be deprived of the benefit of such testimony by the accident of death or by other casualty not due to any fault or negligence on its part {Mattox v. U?iited States). 238. CompulBory Process for Witnesses. By Amendment VI and similar provisions in the state con- stitutions the accused has the privilege of compulsory process for obtaining witnesses in his favor, that is, to have the machinery of the law employed in his behalf, as it may be employed in behalf of the prosecution, for the purpose of bring- ing witnesses into court and compelling them to testify. There is nothing exceptional, however, in this requirement, for in all cases tried in a judicial tribunal the parties are generally en- titled to have compulsory process for securing the attendance and testimony of witnesses. In civil cases the party desiring the attendance of a witness may be compelled to pay or tender his legal fees, and perhaps in the absence of statutory provision this is true also as to the accused in a criminal prosecution, but it is generally provided by statute in the interest of justice that witnesses may be subpoenaed for the accused at the ex- pense of the county, upon approval by the court, so that the accused in a proper case may secure the attendance of wit- nesses in his behalf without advancing or tendering their fees. § z4o] Assistance of Counsel. 327 239. Right to Assistance of Counsel. The guaranty of the right of the accused to the assistance of counsel in making his defence, found in Amendment VI, and in the state constitutions, is intended as an assurance against the recognition in the courts of a practice which at one time prevailed in the criminal courts of England by which a person put on trial for treason or felony was not allowed to be repre- sented by counsel in his behalf. The general rules of pro- cedure in common-law courts allow in civil cases and in prosecutions for lesser crimes that a defendant may have the assistance of counsel if he sees fit, and the exception in prose- cutions for treason or felony was unreasonable. The constitutional right of the accused to be represented by counsel does not necessarily involve the employment of counsel for him at the expense of the state ; but it is usually provided by statute that if the accused is unable by reason of poverty to secure the' assistance of an attorney such assistance shall be furnished at the state's expense. 240. Excessive Bail; Cruel and Unusual Punishments. One of the beneficent rules of criminal procedure in courts of common law is that a person accused of and arrested for a crime but not yet proven guilty in a judicial trial shall not, save in cases of the gravest character, be deprived of his liberty while awaiting trial, provided he can give reasonable assurance that he will appear when his case is brought on for trial and submit to the punishment imposed, should he be found guilty ; and he is allowed to give this assurance by the execution of a bond with a money penalty signed by persons who are finan- cially responsible and who undertake that he shall be present when required, and submit to the punishment imposed. The term " bail " is in common parlance used indiscriminately to in- dicate either the bond which is furnished or the persons who bind themselves under penalty to see that the accused appears when required. In prosecutions for the graver crimes the accused must be arrested and brought before the court or 328 Prosecutions for Crime. [§ 240 voluntarily appear and subject himself to arrest; the court can- not proceed if the prisoner by escaping either before or after arrest prevents the prosecution from having him actually in the presence of the court. Therefore, release on bail after arrest may properly be refused in cases of treason or murder or other crime which may be punished capitally, for it is not to be supposed that any pecuniary consideration or any consideration for bondsmen would be adequate to restrain the escape of one who feared a conviction that would result in the loss of his life. In some state constitutions there are specific provisions as to the cases in which bail may be allowed, but in the absence of such specific provisions it is to be allowed in the general dis- cretion of the court, subject to such statutory regulations as may have been adopted. Release on bail is the rule and the refusal of bail is the exception ; but the amount of bail, that is, the penalty to be fixed in the bail bond and exacted from the sureties in case the accused does not appear for trial or render himself for punishment in case he is found guilty, is to be fixed by the judge or court. The accused who has been released on bail is supposed to be in the custody of or under the supervision of his sureties, who are authorized to surrender him to the proper officers in case they wish to relieve themselves from further responsibility. The provision of Amendment VIII, that excessive bail shall not be required, is by implication a direc- tion that bail shall not be refused in a proper case ; but it is directory rather than mandatory, for there must be authority somewhere to determine whether the charge is one of such nature that bail should not be allowed, or if bail is allowed the amount of bail which should be required. It is usually provided that even after conviction, save in cases where bail may properly be denied on account of the nature of the crime, the accused may be released on bail pending an appeal from his conviction to the proper appellate court. Amendment VIII also prohibits the infliction of cruel and unusual punishments. The common law as administered in England in earlier times authorized barbarous punishments such as being drawn and quartered or maimed or branded or § 24'] Habeas Corpus. 329 disfigured ; and while the death penalty for very grave crimes, such as treason and murder, has been retained, the infliction of such penalty in any barbarous or unusual manner would be in violation of the guaranties of the federal and state constitu- tions. Hanging as a means of inflicting the death penalty has been continuously practised as a proper method, and perhaps decapitation would not be an improper method, although it is unusual. Execution by electricity has been held not to be such a cruel method of inflicting capital punishment as to be open to constitutional objection {In re Kemmler). Whipping as a punishment for certain offences is authorized by the laws in some of the states. It may be announced as a safe rule that whatever forms of punishment were usual at the time of the adoption of the state constitutions would still be authorized. 241. Writ of Habeas Corpus. A legal remedy against unlawful deprivation of personal liberty which is peculiarly applicable as to criminal prosecu- tions, although it is not expressly limited to such cases, is the writ of habeas corpus, which is granted by a court or judge on an application under oath alleging that some person named is illegally imprisoned or restrained of his liberty, and asking that the person exercising such imprisonment or restraint be re- quired to come before the court or judge to show under what authority his power is being exercised. If the person against whom the proceeding is brought can show lawful authority, as where a parent is restraining his child, or a guardian his ward, or where an officer is imprisoning one accused or convicted of crime under legal process of arrest or by way of punishment lawfully imposed, then the proceeding will be dismissed ; but if no lawful authority can be shown for the imprisonment or restraint, the court or judge hearing the case may order the person found to be illegally restrained set at liberty. As applicable to criminal prosecutions, the proceeding by habeas corpus enables the court or judge before whom it is brought to inquire into the legality of the arrest of a person 330 Prosecutions for Crime. [§ 241 complaining of unlawful detention. If the accused has been refused bail, a proper method of securing the release on bail, if the offence is a bailable one, is by use of this writ. But the proceeding is not a method for revising or reviewing the action of the court which has jurisdiction to hold the case for trial, or for freeing him from restraint 'under arrest or commitment for an offence charged so long as the court is proceeding lawfully and without violation of constitutional guaranties. As a general rule one court will not by writ of habeas corpus interfere with restraint or imprisonment by virtue of the author- ity of another court ; and the fact that the federal courts while acting within the scope of their authority are superior to the state courts, and are given ultimate power to determine the ex- tent of their authority, renders it impossible for a state court to exercise jurisdiction by writ of habeas corpus to determine the legality of imprisonment or restraint under the authority of a federal court {Tarble's Case). One who is unlawfully impris- oned or restrained under the pretended authority of a federal court is not without redress, but he should seek it by applica- tion to a federal court or judge. On the other hand the federal judiciary in affording the protection guaranteed in the federal constitution as against state authority in particular classes of cases has the power to inquire into the legality of the proceed- ings of a state court if it is contended that under such authority a person is being deprived of some right guaranteed to him by the federal constitution. Therefore, a federal court or judge may in a habeas corpus proceeding determine the validity of proceedings under the authority of a state court {In re Neagle). But as the person who is unlawfully proceeded against in a state court has usually other remedies for the protection of his rights under the federal constitution, such as an appeal to the highest court of the state, and on denial there, an appeal to the Supreme Court of the United States, the federal courts will interfere by habeas corpus with proceedings under the author- ity of a state court only in a case of peculiar urgency, and will usually leave the ^complaining party to his remedy by appeal ( Whitten v. Tomlinsori). §243] Suspension of Habeas Corpus, 331 242. Suspension of Habeas Corpus. To protect the privilege of resorting in a proper case to pro- ceedings by habeas corpus the federal constitution as well as the constitutions of the various states contain provisions regulating the suspension of the writ. The provision of the federal consti- tution is that " The privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it " (Art. I, § 9, IT 2). Such sus- pension is involved in the declaration of martial law (see above, § 1 14), and is only proper when it becomes necessary temporarily to subject the exercise of civil authority to the military power. It has been the subject of much discussion whether without legislative authority the president may suspend the writ on his own judgment in cases of rebellion or invasion {Ex parte Merry man and Ex parte Milligan) . But he may be authorized to do so by statute, as was done in 1863, 1866, and 1867. In the absence of any suspension of the writ on account of such emergency as is contemplated by the constitution, the right to the writ for the purpose of having determined by judicial authority the lawfulness of imprisonment or other dep- rivation of personal liberty is a constitutional right, and the prohibition against its suspension is regarded as one of the per- sonal guaranties of civil liberty. In the constitutional history of England the final establishment of the right to a judicial in- quiry as to the lawfulness of any arrest or detention, even under the authority of the king himself, was the final step in the complete recognition of individual liberty and the subordination of the executive authority to the limitations imposed by constitutional government. The right was finally established in England by the Habeas Corpus Act, passed in 1679, which is regarded as one of the fundamental charters of civil liberty. 243. Waiver of Constitutional Guaranties. While the protection afforded by the guaranties found in the federal or a state constitution is often spoken of as the inalien- 332 Prosecutions for Crime. [§ ^43 able right of one accused of crime, it does not follow that such guaranties may not be waived by the accused. While he cannot by any act of his give jurisdiction to a court which under the law does not have jurisdiction, nor consent to a punishment which a court cannot lawfully inflict; there is no inherent reason why he may not waive any provisions of the constitution or the law which are intended for his protection, provided he freely and in the possession of a sound mind exercises the dis- cretion of doing so for his own presumed advantage. He can- not waive the necessity for his presence in the court on a trial for treason or felony, because the court has no jurisdiction to proceed without his presence ; nor can he consent to be tried in a court which is not authorized by law to try prosecutions for the offence with which he is charged ; nor can he consent to death or imprisonment as a punishment, for an offence for which such punishment is not provided ; but he may waive a jury trial by plea of guilty {Hallinger v. Davis) and he may waive ob- jections to evidence which he might interpose according to con- stitutional provisions ; and he may consent to be tried without a jury provided the court is legally authorized to proceed to try a criminal case without a jury {Harris v. People of Illinois) ; and without question he may waive a speedy trial or the assist- ance of counsel or any of the other provisions specially intended to secure to him a fair trial. CHAPTER XLIII. TRIAL BY JURY. 244. References. J. Story, Constitution, §§ 1768-1772 ; J. R. Tucker, Constitution, § 334 ; T. M. Cooley, Constitutional Law, ch. xiii, § 5 ; H. C. Black, Constitutional Law, §§ 220-223 ; M. Hale, History of the CommoH Law, ch. xii ; W. Black- stone, Commentaries, III, ch. xxiii, and note in Hammond's ed., 507 ; J. F. Dillon, Laws and Jurisprudence of England and America, 121-132 ; The Federalist, No. 83; Capital Traction Co. v. IIof(i&<) 209 ; action of, for amend- ment of constitution, 34; general Index. 427 powers, 40, 41 ; power in the terri- tories, 52 ; regulation of elections, 68, 76, 257, 286, 287 ; election of sen- ators and representatives in, 67-69; not vested with general police power, 88 ; authority to punish crimes, 91 ; appropriations, 122 ; bills for raising revenue, 122; power to lay and col- lect taxes, 136 ; to regulate money and legal tender, 146; to regulate commerce, 150-163; to charter fed- eral corporations, 170; as to natural- ization, 173; as to bankruptcy, 177; as to copyrights and patents, 178-181 ; as to weights and measures, 181 ; as to post-offices and post-roads, 181; as to District of Columbia and places ceded to the federal government, 184-186; war powers, 189-193; im- plied powers, 194-196; limitations on powers, ig6; may provide for appointment of officers, 203, 204; authority as to diplomacy and treaties, 213-218; powers as to aliens, 214; may provide for federal courts, 226; powers as to admitting states, 262; as to change of state boundaries, 263 ; as to government of territories, 265 ; may prescribe manner of proof of acts, records and proceedings of a state, 273; power to confer citizen- ship, 279 ; may impair obligation of contracts, 357. Constitution of Great Britain, charac- teristics of, 6-8, II, 12. Constitution, federal, formulation and adoption of, 31-33; nature, 33; im- plied powers, 41 ; final interpretation, 43; limitations on state power, 44; amendments, 46-53; bills of rights, 48; construction of limitations, 50; in the territories, 52; provision as to general welfare, 89; as to crimes, 91 ; jurisdiction of cases arising under, 230-232; interpretation in courts, 231 ; appeals in cases involving con- struction, 242 ; ratification by states, 262 ; extension to territories, 266. Constitutional conventions, authority of, 28. Constitutional government, 3-25. Constitutional guaranties, waiver of, 325. 33'- Constitutional law, affected by history, 4-6; nature of, in United States, 13. Constitutionality of statutes, judiciary may pass upon, iS-25, 255; execu- tive, judge as to, 201. Constitutions, adoption and amend- ment of, 26-35; interpretation by executive, 201, Constitutions, state, eai'ly form, 27; authority under, 27; amendment of, 34 ; bills of rights in, 4S ; limitations as to methods of legislation, 72 ; limi- tations on legislative power, 83. Constitutions, written, 11-16; govern- ment under, 16-18; unconstitution- ality of statutes under, 18-25, 255, Construction, of constitutions as to powers granted, 39 ; of limitations in federal constitution, 50; of federal constitution in courts, 231 ; appeals in cases involving, 242. Consular courts, jurisdiction of, 250,281. Consuls, jurisdiction of cases affecting, 225, 232, 249. Contempt, punishment for, without jury trial, 346. Contests as to elections, 69. Continental Congress, authority of, 29. Contracts, corporate charters deemed, 167-171; obligation impaired by bankruptcy laws, 177; right to make and enforce, 294, 351; obligation protected, 356-362. Convention, to prepare federal consti- tution, 31 ; for amendment of federal constitution, 34. Conventions, constitutional, authority of, 28. Conventions of states to adopt federal constitution, 17, 32. Copyrights, 1 78-181. Corporations, private, control of, under police power, 86; exercise of power of eminent domain by, 107 ; creation and regulation of, 165-171; federal, jurisdiction of cases by or against, 231 ; citizenship of, as to federal juris- diction, 238 ; not entitled to privileges and immunities of citizenship, 272; 428 Index. protected by provisions as to due process of law, 349^ charters of, as contracts, 361. Corporations, public or municipal, may exercise power of eminent domain, 106; condemnation of property by, 112; taxation by, 124; regulation of, 168-171; subject to legislative con- trol, 362. Counsel, right to assistance of, in crim- inal prosecutions, 327. Counterfeiting, 94. Court, powers of, in jury trial, 336. Court of claims, 235, 251. Courts, power of, to declare statutes unconstitutional, 18-25 ; decisions of, as precedents, 20, 23, 221, 360; gen- eral powers of, 219 ; having juris- diction, judgment conclusive, 273 ; cannot act without jurisdiction, 350. Courts, federal, general powers of, presumption, 227 ; jurisdiction of, 224-228; cases cognizable by, 230- 239 ; exercise of power by, 240-243 ; apportionment of powers of, 244- 251; law administered in, 252-255; habeas corpus in, 330. Courts, state, general powers of, 221 ; law administered in, 223; jurisdiction of, as to federal questions, 226 ; con- current jurisdiction of, with federal courts, 227, 228 ; removal of cases from, 241 ; appeal from, to federal courts. 242; jurisdiction conflicting with federal courts, 254; powers as to habeas corpus with reference to proceedings in federal court, 330. Courts-martial, 191, 319. Craig V. Missouri^ 144. Crime, pardons for, 204; religious be- lief no defence for, 300. Crimes, punishment of, left to states, 39 ; power of federal government to punish, 40; against federal govern- ment,. 91-94; punishment of, in gen- eral, 91-99 ; on high seas, 95 ; against United States, jurisdiction, 225, 234, 245, 246; against United States, arrests for, 251; against United States, statutory only, 254 ; juris- diction to punish within state, 269 ; guaranties as to prosecutions for, 293, 31 5-332 ; injuries to reputa- tion, 302-308; indictment, 31 7-3*9 J venue, 323. Criminal procedure, guaranties as to, 293. 315-332. Criminals, extradition of, 269. Cummings v. Missouri 205. Currency, under confederation, 31; tax- ation of, 129, 144; regulation of , by federal government, 133, 144-147, 170 ; powers of states as to, 144. Curtis, Ex parte^ 195, J^ALBY V. WOLF, 63. Dartmouth College Case, 168, 348^ 361. Debs, In re, 163, 202, 339, 347. Decisions of courts as precedents, 20, 23, 221, 360. Declaration of Independence, nature of, 8-1 1, 49; prohibition of, as to stand- ing armies, 193; guaranties of, as to natural rights, 289-294; provisions of, as to jury trial in criminal prose- cutions, 323. Deeringv. Peterson, 125. Defamation, see Libel. Delegated powers of federal govern- ment, 40, 41. De Lima v. Bidwell, 138. Departments, executive, organization of, 74-78. Departments of government, distribu- tion of powers among, 7, 37-39; exercise delegated power, 9 ; rela- tions of, iS-25; implied powers of, 41; independence of, 55-64; mutual checks upon, 63. Diplomacy, authority of the president as to, 213, Diplomatic relations not controlled by judiciary, 21. Direct taxes, 139-142. District courts, federal, 245. District of Columbia, government of, 184; not a state, 237; system of courts for, 250. Division of powers among departments of government, 7, 37-39, 53-64. Dobbins v. Couunissioner, 130, Index. 429 Domicil, as affecting state citizenship, 276. Dofr V. United States^ 53. Double taxation, 128. Douglas V. Kentucky^ 361. Due process of law, as to power of eminent domain, 113, 118; as to taxation, 131-133 ; as to corpora- tions, 168, 273 ; as to prosecutions for crime, 316; jury trial not es- sential to, 340; constitutional pro- visions, 344; what constitutes, 345; effect of legislation, 347 ; what per- sons entitled to, 349 ; property rights protected, 350; freedom of contract and of labor, 351. Duties, imposts, and excises, power of Congress to levy, 133, 136-139. Dwelling, protection of sanctity of, 312, 314. Dying declarations, admissibility of, 325. Dynes V. Hoover^ 192. gASEMENT for public use, 114, Eilenbecker v. Plymouth County, 339, 346. Election, of members" of state legisla- tures, 67 ; of senators and representa- tives in Congress, 67-69; of presi- dent, 75-78. Elections, regulation of, by Congress, 68, 76, 257, 286, 287. Elective franchise, how conferred and protected, 2S4-287. Electoral college, 75-78. Electoral commission, 78. Eleventh amendment, purpose of, 236. Elk V. Wilkins, 277, Eminent domain, 103-11S; distin- guished from taxation, 123; confis- cation of franchises under, 362. England, see Great Britain. Enumerated powers, 40, 41. Enumeration of rights, constitutional, 41. Equal protection of the laws, 352; cor- porations entitled to, 273. Equality, how far guaranteed, 289-294; of taxation, 128, 131 ; of privileges, 272; as to religion, 295. Equity, as administered in the federal courts, 252-255. Equity cases, procedure in, 338, 339, Escheat, 102. Evidence, of acts, records or proceed- ings of another state, 273; of laws of another state, 274. Executive, independence of, 56-58; administrative functions, 200-202 ; appointment of officers, 202-204 ; pardons, 204, 205 ; veto power, 206, 208; recommendations as to legisla- tion, 208. Executive, colonial, 26. Executive, federal. See President. Executive, state, election of, 75 ; au- thority of, as to extradition, 270. Executive department, federal, powers of, as to diplomacy, 21, 22. See President. Executive departments, organization of, 74-78. Executive powers, under British consti- tution, 7; federal and state, 197-199. Exemption statutes, as amounting to contracts, 360 ; as affecting vested rights, 365. Exemptions, from taxation, 126; of church property, 298; repeal of, 362. Expatriation, 174. Exports, taxation of, 137. Ex post facto laws, not valid, 205, 364. Expulsion of members of Congress, 22. Extra sessions of Congress, 209. Extradition of criminals, 269. ■pAITH and credit to acts, records and judgments of states, 273. Field V. Clark ^ 63. Fifteenth amendment, 53, 285. Financial powers, of states, 143-145 ; of federal government, 145-147. Fisk v. Jefferson Police Jury ^ 360. Fletcher v. Peck^ 358. Fong Yui Ting v. United States, 195. Foreign commerce, regulation of, T50- 163, See Commerce. Foreigners, see Aliens. Fort Leavenworth R . Co. v. Loive, 185. Forts, arsenals, and navy yards, juris- diction over, 185. 43^ Index. Fourteenth amendment, scope of, 47 48 ; construction of, 51 ; as affecting police power of states, 87 ; applica- tion of, to condemnation proceedings, 105; as affecting taxation, 131 ; as to citizenship, 175, 275-283; as to due process of law, 345, 349; as to equal protection, 352; protects executed cor tracts, 358. France, effect of revolution in, 8. Franchises of corporations, how con- ferred, 165-171; regulation of, 361, 362; federal taxation of, 130. See Corporations. Freedom of contract, 293, 351. Freedom of rehgion, 295. Freedom of speech and the press, 294 301-308. French v. Asphalt Co., 132. Fugitive slave law, 183, 270. Fugitives from justice, extradition of, 269. QAINES V. FUENTES, 241. Garland^ In re, 205. Geebrick v. State, 62, General welfare clause of federal con- stitution, 89, Gibbons v. Ogden, 156, 195. Gonzales v. IVUliams, 267, 280. Government, constitutional, 3-25; de- partments of, exercise delegated pov\er, 9; under written constitution, 16-18; division of powers among departments of, 55-64; ultimate ob- ject of, 85 ; taxation of officers or agencies of, 129, 130; libels on, 303. Government, federal, under confedera- tion, 30; inauguration of, 32; rela- tions to state governments, 36-53, 256; enumerated powers, 40; implied powers, 41, 194-196; supremacy, 43 ; may exercise power of eminent domain, 106; taxation of bonds or other agencies or officers of, 129; power of, to regulate currency, 133 ; taxation by, 135; direct taxation by, 139; power of, as to currency, 144- 147; as to commerce, 150-163; as to corporations, 170; war powers of, 189-193. Governments, state, relations to federal government, 36-53, 256; general powers of, 40 ; condemnation of prop- erty by, 103-118; power of taxation inherent in, 120; recognition of, by federal authority, 212. Governments, territorial, 265-267. Governor. See Executive. Grand jury, indictment by, for crime, 317-319- Great Britain, institutions, 5-8; con- stitution, 6-8, 11; sovereignty, 16. TTABEAS CORPUS, in Great Britain, 12; suspension of, 192, 211, 331; in criminal prosecutions, 329- Hallinger v. Davis, 332. Hans V. Louisiaiia, 237, t^i^^. Harris v. People of Illinois, 332. Hartford v. Hartford Bridge Co., 362. Henderson v. Mayor of New York^ 156. Hepburn v. Ellzey, 184. Herdick v. Roessler, 180. High seas, punishment of crimes on, 95; admiralty jurisdiction as to, 233; citizenship of children bom on, 278. Highways, condemnation of land for, 109. History, constitutional, as affecting law, 4-6. Holden v. Hardy, 352. House of Representatives, election of members of, 67-69; power of, as to treaty relations, 215; members of, chosen by people, 286. 5